GLORIA JOHNSON; JOHN LOGAN, individuals, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. CITY OF GRANTS PASS, Defendant-Appellant.
Nos. 20-35752, 20-35881
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed September 28, 2022
D.C. No. 1:18-cv-01823-CL
Before: Ronald M. Gould and Daniel P. Collins, Circuit Judges, and Roslyn O. Silver,* District Judge. Opinion by Judge Silver; Dissent by Judge Collins
Civil Rights
The panel affirmed in part and vacated in part the district court’s summary judgment and its permanent injunction in favor of plaintiffs; affirmed certification pursuant to
The five ordinances, described as an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance, result in civil fines up to several hundred dollars per violation. Persons found to violate ordinances multiple times could be barred from all City property. If a homeless person is found on City property after receiving an exclusion order, they are subject to criminal prosecution for trespass.
The panel stated that this court’s decision in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), which held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter” served as the backdrop for this entire litigation.
The panel held that based on the record in this case, the district court did not err by finding plaintiffs satisfied the requirements of
Addressing the merits, the panel affirmed the district court’s ruling that the City of Grants Pass could not, consistent with the Eighth Amendment, enforce its anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there was no other place in the City for them to go. The panel held that Martin applied to civil citations where, as here, the civil and criminal punishments were closely intertwined.
There was no need to resolve whether the fines imposed under the anti-sleeping anti-camping ordinances violated the Eighth Amendment’s prohibition on excessive fines because the permanent injunction would result in no class member being fined for engaging in such protected activity. Finally, the panel held that it was unnecessary to decide whether plaintiffs properly pled their procedural due process challenge to the park exclusion appeals ordinance because subsequent to the district court’s order, the City amended the ordinance.
The panel directed the district court on remand to narrow its injunction to enjoin only those portions of the anti-camping ordinances that prohibited conduct protected by Martin and this opinion. In particular, the district court should narrow its injunction to the anti-camping ordinances and enjoin enforcement of those ordinances only against involuntarily homeless person for engaging in conduct necessary to protect themselves from the elements when there was no shelter space available.
COUNSEL
Aaron P. Hisel (argued), Law Offices of Montoya Hisel and Associates, Salem, Oregon; Gerald L. Warren, Law Office of Gerald L. Warren, Salem, Oregon, for Defendant-Appellant.
Edward Johnson (argued) and Walter Fonseca, Oregon Law Center, Portland, Oregon, for Plaintiffs-Appellees.
Eric S. Tars, National Homelessness Law Center, Washington, D.C.; Tamar Ezer, Acting Director; David Berris, Joe Candelaria, and Lily Fontenot, Legal Interns; David Stuzin, Student Fellow; University of Miami School of Law, Human Rights Clinic, Coral Gables, Florida; Leilani Farha, Former United Nations Special Rapporteur on the Right to Adequate Housing and Global Director, The Shift #Right2Housing, Ottawa, Ontario, Canada; for Amici
Kelsi B. Corkran and Seth Wayne, Institute for Constitutional Advocacy & Protection, Washington, D.C., for Amicus Curiae Fines and Fees Justice Center.
John He, Leslie Bailey, and Brian Hardingham, Public Justice, Oakland, California; John Thomas H. Do, ACLU Foundation of Northern California, San Francisco, California; for Amici Curiae Public Justice, ACLU of Northern California, ACLU of Southern California, ACLU of Oregon, Institute for Justice, National Center for Law and Economic Justice, and Rutherford Institute.
Nicolle Jacoby, Dechert LLP, New York, New York; Tristia M. Bauman, National Homelessness Law Center, Washington, D.C.; for Amici Curiae National Homelessness Law Center, Homeless Rights Advocacy Project at the Korematsu Center for Law and Equality at Seattle University School of Law, and National Coalition for the Homeless.
SILVER, District Judge:
The City of Grants Pass in southern Oregon has a population of approximately 38,000. At least fifty, and perhaps as many as 600, homeless persons live in the City.1 And the number of homeless persons outnumber the available shelter beds. In other words, homeless persons have nowhere to shelter and sleep in the City other than on the streets or in parks. Nonetheless, City ordinances preclude homeless persons from using a blanket, a pillow, or a cardboard box for protection from the elements while sleeping within the City’s limits. The ordinances result in civil fines up to several hundred dollars per violation and persons found to violate ordinances multiple times can be barred from all City property. And if a homeless person is found on City property after receiving an exclusion order, they are subject to criminal prosecution for trespass.
In September 2018, a three-judge panel issued Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), holding “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 1048. Approximately six weeks after the initial Martin panel opinion, three homeless individuals filed a putative class action complaint against the City arguing a number of City ordinances were unconstitutional. The district court certified a class of “involuntarily homeless” persons and later granted partial summary judgment in favor
I.
This case involves challenges to five provisions of the Grants Pass Municipal Code (“GPMC”). The provisions can be described as an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance. When the district court entered judgment, the various ordinances consisted of the following.
First, the anti-sleeping ordinance stated, in full
Sleeping on Sidewalks, Streets, Alleys, or Within Doorways Prohibited
A. No person may sleep on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety.
B. No person may sleep in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.
C. In addition to any other remedy provided by law, any person found in violation of this section may be immediately removed from the premises.
GPMC 5.61.020. A violation of this ordinance resulted in a presumptive $75 fine. If unpaid, that fine escalated to $160. If a violator pled guilty, the fines could be reduced by a state
Next, the general anti-camping ordinance prohibited persons from occupying a “campsite” on all public property, such as parks, benches, or rights of way. GPMC 5.61.030. The term “campsite” was defined as
any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed, established, or maintained for the purpose of maintaining a temporary place to live, whether or not such place incorporates the use of any tent, lean-to, shack, or any other structure, or any vehicle or part thereof.
GPMC 5.61.010. A second overlapping anti-camping ordinance prohibited camping in public parks, including “[o]vernight parking” of any vehicle. GPMC 6.46.090. A homeless individual would violate this parking prohibition if she parked or left “a vehicle parked for two consecutive hours [in a City park] . . . between the hours of midnight and 6:00 a.m.” Id. Violations of either anti-camping ordinance resulted in a fine of $295. If unpaid, the fine escalated to $537.60. However, if a violator pled guilty, the fine could be reduced to $180 for a first offense and $225 for a second offense. GPMC 1.36.010(J).
Finally, the “park exclusion” ordinance allowed a police officer to bar an individual from all city parks for 30 days if, within one year, the individual was issued two or more citations for violating park regulations. GPMC 6.46.350(A). Pursuant to the “park exclusion appeals” ordinance, exclusion orders could be appealed to the City Council. GPMC 6.46.355. If an individual received a “park
Since at least 2013, City leaders have viewed homeless persons as cause for substantial concern. That year the City Council convened a Community Roundtable (“Roundtable”) “to identify solutions to current vagrancy problems.” Participants discussed the possibility of “driving repeat offenders out of town and leaving them there.” The City’s Public Safety Director noted police officers had bought homeless persons bus tickets out of town, only to have the person returned to the City from the location where they were sent. A city councilor made clear the City’s goal should be “to make it uncomfortable enough for [homeless persons] in our city so they will want to move on down the road.” The planned actions resulting from the Roundtable included increased enforcement of City ordinances, including the anti-camping ordinances.
The year following the Roundtable saw a significant increase in enforcement of the City’s anti-sleeping and anti-camping ordinances. From 2013 through 2018, the City issued a steady stream of tickets under the ordinances.4 On September 4, 2018, a three-judge panel issued its opinion in
In Martin, six homeless or recently homeless individuals sued the city of Boise, Idaho, seeking relief from criminal prosecution under two city ordinances related to public camping. Martin, 920 F.3d at 603–04. As relevant here, Martin held the Cruel and Unusual Punishment Clause of the “Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Id. at 616. Martin made clear, however, that a city is not required to “provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.” Id. at 617 (quoting Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007)) (omission in original).
In October 2018, approximately six weeks after the Martin opinion, Debra Blake filed her putative class action complaint against the City. The complaint alleged enforcement of the City’s anti-sleeping and anti-camping ordinances violated the Cruel and Unusual Punishment Clause of the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Due Process Clause of the Fourteenth Amendment. The complaint was amended to include additional named plaintiffs and to allege a claim that the fines imposed under the ordinances violated the Excessive Fines Clause of the Eighth Amendment. On January 2, 2019, a few months after the initial complaint was filed, and before Plaintiffs filed their class certification motion, the City amended its anti-camping ordinance in an attempt to come into compliance with Martin. Prior to this change, the anti-camping ordinance was worded such that “‘sleeping’ in parks . . . automatically constitut[ed] ‘camping.’” According to the City, “in direct response to Martin v. Boise, the City amended [the anti-camping ordinance] to make it clear that the act of ‘sleeping’ was to be distinguished from the prohibited conduct of ‘camping.’” The City meant to “make it clear that those without shelter could engage in the involuntary acts of sleeping or resting in the City’s parks.” Shortly after the City removed “sleeping”
All involuntarily homeless individuals living in Grants Pass, Oregon, including homeless individuals who sometimes sleep outside city limits to avoid harassment and punishment by [the City] as addressed in this lawsuit.
Plaintiffs’ class certification motion was accompanied by a declaration from the Chief Operating Officer and Director of Housing and Homeless Services for United Community Action Network (“UCAN”), a non-profit organization that serves homeless people in Josephine County, the county where the City is located.6 UCAN had recently conducted a “point-in-time count of homeless individuals in Josephine County.”7 Based on that count, the Chief Operating Officer’s declaration stated “[h]undreds of [homeless]
The City opposed class certification, arguing Plaintiffs had not provided sufficient evidence to meet any of the requirements for certifying a class. The district court disagreed and certified the class proposed by Plaintiffs. The parties proceeded with discovery and filed cross-motions for summary judgment.
At the time the parties filed their summary judgment motions, there were only four locations in the City that temporarily housed homeless persons, which proved inadequate. One location was run by the Gospel Rescue Mission, an explicitly religious organization devoted to helping the poor. The Gospel Rescue Mission operated a facility for single men without children, and another facility for women, including women with children. These two facilities required residents to work at the mission six hours a day, six days a week in exchange for a bunk for 30 days. Residents were required to attend an approved place of worship each Sunday and that place of worship had to espouse “traditional Christian teachings such as the Apostles Creed.” Disabled persons with chronic medical or mental health issues that prevented them from complying with the Mission’s rules were prohibited.8
Finally, on nights when the temperature was below 30 degrees (or below 32 degrees with snow), UCAN operated a “warming center” capable of holding up to 40 individuals. That center did not provide beds. The center reached capacity on every night it operated except the first night it opened, February 3, 2020. Between February 3 and March 19, 2020, the warming center was open for 16 nights. The center did not open at all during the winter of 2020–2021.
Presented with evidence of the number of homeless persons and the shelter spaces available, the district court concluded “[t]he record is undisputed that Grants Pass has far more homeless individuals than it has practically available shelter beds.” The court then held that, based on the unavailability of shelter beds, the City’s enforcement of its anti-camping and anti-sleeping ordinances violated the Cruel and Unusual Punishment Clause. The fact that Martin involved criminal violations while the present case involved initial civil violations that matured into criminal violations made “no difference for Eight Amendment purposes.” Next, the court held the system of fines violated the Eighth
In reaching its decision the district court was careful to point out that, consistent with Martin, the scope of its decision was limited. The court’s order made clear that the City was not required to provide shelter for homeless persons and the City could still limit camping or sleeping at certain times and in certain places. The district court also noted the City may still “ban the use of tents in public parks,” “limi[t] the amount of bedding type materials allowed per individual,” and pursue other options “to prevent the erection of encampments that cause public health and safety concerns.”10
Approximately one month after the summary judgment order, the district court issued a judgment which included a
The City appealed and sought initial en banc review to clarify the scope of Martin. The petition for initial hearing en banc was denied.
The core issue involving enforcement of the anti-camping ordinances is governed in large part by Martin. While there are some differences between Martin and the present case, the City has not identified a persuasive way to differentiate its anti-camping ordinances from the questioned ordinances in Martin. Therefore, the district court’s ruling that the Cruel and Unusual Punishment Clause bars enforcement of the anti-camping ordinances will be mostly affirmed. We need not address the potential excessiveness of the fines issue or whether Plaintiffs adequately pled their due process challenge.
Our analysis proceeds in five parts. First, we reject the City’s argument that the district court lacked jurisdiction.12 Second, we find no abuse of discretion in the district court’s certification of a class of involuntarily homeless persons. Third, we agree with the district court that at least portions of the anti-camping ordinance violate the Cruel and Unusual Punishment clause under Martin. Fourth, we conclude there is no need to resolve whether the fines violate the Excessive Fines clause. Fifth, we hold it is unnecessary to decide Plaintiffs’ procedural due process claim.
A.
Standing and mootness are questions of law that we review de novo. Hartman v. Summers, 120 F.3d 157, 159 (9th Cir. 1997); Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003). “Federal courts must determine that they have
The City’s appellate briefing makes two standing arguments. First, the City argues Plaintiffs’ claims are now moot because Plaintiffs no longer face a risk of injury based on the City’s changed behavior after Martin. Second, the City argues Plaintiffs have not identified any relief that is within a federal court’s power to redress. Both arguments are without merit.
A claim becomes moot, and no longer justiciable in federal court, if it has been remedied independent of the court. See Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013). There is abundant evidence in the record establishing homeless persons were injured by the City’s enforcement actions in the past. The City argues, however, that it made changes after Martin such that there is no longer a threat of future injury. The problem for the City is that voluntary cessation of challenged practices rarely suffices to moot a case and, in any event, there is evidence the challenged practices have continued after Martin.
“It is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of
The parties diverge substantially on how to characterize the degree of enforcement after Martin was issued in September 2018. The City argued in its briefing and at oral argument that it has largely complied with Martin, noting the 2019 amendment to an anti-camping ordinance, that citations were issued “sparingly” in 2019, and in particular it says it issued only two citations during the late evening and early morning since Martin. The City supports its petition with a declaration from a City police officer stating “[i]t is the regular practice of every officer I know of on this department to enforce these Ordinances sparingly and in recognition of the different circumstances we encounter.” As for Plaintiffs, they offered evidence showing enforcement continued after Martin such that class members received citations and exclusion orders for camping or sleeping and were prosecuted for criminal trespass between the point the lawsuit was filed and the close of discovery.
Although the record does show the rate of enforcement of the various ordinances decreased since Martin, even accepting the City’s position the evidence is undisputed that
The City’s other jurisdictional argument is that Plaintiffs’ claims are not redressable. According to the City,
Finally, we raise sua sponte the possibility that the death of class representative Debra Blake while this matter was on the appeal has jurisdictional significance. Cf. Fort Bend Cty. v. Davis, 139 S.Ct. 1843, 1849 (2019) (holding courts must raise issues of subject matter jurisdiction sua sponte). We hold Blake’s death does not moot the class’s claims as to all challenged ordinances except possibly the anti-sleeping ordinance. As to that ordinance, we remand to allow the district court the opportunity to substitute a class representative in Blake’s stead.
With respect to the park exclusion, criminal trespass, and anti-camping ordinances, the surviving class representatives,
With respect to the anti-sleeping ordinance, the law is less clear. Debra Blake is the only class representative who had standing in her own right to challenge the anti-sleeping ordinance. Under cases such as Sosna v. Iowa, 419 U.S. 393, 401 (1975), and Franks v. Bowman Transportation Co., Inc., 424 U.S. 747 (1976), a class representative may pursue the live claims of a properly certified class—without the need to remand for substitution of a new representative17—even
Because Plaintiffs have not moved to substitute a class representative pursuant to Federal Rule of Appellate Procedure 43(a) or identified a representative who could be substituted, because no party has addressed this question in briefing, and because we are not certain of our jurisdiction to consider the challenge to the anti-sleeping ordinance, we think it appropriate to vacate summary judgment as to the
We therefore hold the surviving class representatives at a minimum have standing to challenge every ordinance except the anti-sleeping ordinance. As to the anti-sleeping ordinance, we vacate summary judgment and remand for the district court to consider in the first instance whether an adequate class representative, such as class member Dolores Nevin, exists who may be substituted.
B.
The City’s next argument is the district court erred in certifying the class. We “review a district court’s order granting class certification for abuse of discretion, but give the district court ‘noticeably more deference when reviewing a grant of class certification than when reviewing a denial.’” Patel v. Facebook, Inc., 932 F.3d 1264, 1275 (9th Cir. 2019) (internal citation omitted) (quoting Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th Cir. 2017)). Factual findings underlying class certification are reviewed for clear error. Parsons v. Ryan, 754 F.3d 657, 673 (9th Cir. 2014).
A member of a class may sue as a representative party if the member satisfies
If the initial requirements of
The district court found the
And based on the record in this case, the district court did not err by finding Plaintiffs satisfied the requirements of
To satisfy the numerosity requirement a proposed class must be “so numerous that joinder of all members is impracticable.”
When the district court certified the class on August 7, 2019, it found there were at least 600 homeless persons in the City based on the 2018 and 2019 PIT counts conducted by UCAN. The City does not identify how this finding was clearly erroneous. In fact, the City affirmatively indicated to Plaintiffs prior to the class certification order that the number of homeless persons residing in Grants Pass for the past 7 years was “unknown.” Further, the only guidance offered by the City regarding a specific number of class members came long after the class was certified. A City police officer claimed in a declaration that he was “aware of less than fifty
The officer’s guess of “less than fifty” homeless persons is inconsistent with the general understanding that PIT counts routinely undercount homeless persons. See Martin, 920 F.3d at 604 (“It is widely recognized that a one-night point in time count will undercount the homeless population.′”) (internal quotation marks omitted). But even accepting the officer’s assessment that there were approximately fifty homeless persons in the City, the numerosity requirement is satisfied. Joining approximately fifty persons might be impracticable and especially so under the facts here because homeless persons obviously lack a fixed address and likely have no reliable means of communications.21 At the very least, the district court did
A class satisfies
As correctly identified by the district court, Plaintiffs’ claims present at least one question and answer common to the class: “whether [the City’s] custom, pattern, and practice of enforcing anti-camping ordinances, anti-sleeping ordinances, and criminal trespass laws . . . against involuntarily homeless individuals violates the Eighth Amendment of the Constitution.” An answer on this
The City argues the commonality requirement was not met because some class members might have alternative options for housing, or might have the means to acquire their own shelter.22 But this argument misunderstands the class definition. Pursuant to the class definition, the class includes only involuntarily homeless persons.23 Individuals who
Typicality asks whether “the claims or defenses of the representative parties are typical” of the class.
The class representatives’ claims and defenses are typical of the class in that they are homeless persons who claim that the City cannot enforce the challenged ordinances against them when they have no shelter. The defenses that apply to class representatives and class members are identical. The claims of class representatives and class members are similar, except that some class representatives live in vehicles while other class members may live on streets or in parks, not vehicles. This does not defeat typicality. The class representatives with vehicles may violate the challenged ordinances in a different manner than some class members—i.e., by sleeping in their vehicle, rather than on the ground. But they challenge the same ordinances under the same constitutional provisions as other class members. Cf. Staton, 327 F.3d at 957 (“[R]epresentative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.”) (citation omitted). The district court did not abuse its discretion in finding the typicality requirement met.
The City does not present any other arguments regarding class certification, such as the propriety of certifying the class as an injunctive class under
C.
Having rejected the City’s jurisdictional arguments, as well as its arguments regarding class certification, the merits can be addressed. The City’s merits arguments regarding the Cruel and Unusual Punishment Clause take two forms. First,
According to the City, citing individuals under the anti-camping ordinances cannot violate the Cruel and Unusual Punishment Clause because citations under the ordinances are civil and civil citations are “categorically not ‘punishment’ under the Eight Amendment.”25 The City explains “the simple act of issuing a civil citation with a court date [has never] been found to be unconstitutional ‘punishment’ under the Eighth Amendment.” While not entirely clear, the City appears to be arguing the Cruel and Unusual Punishment Clause provides no protection from
Plaintiffs’ focus on civil citations does involve an extra step from the normal Cruel and Unusual Clause analysis and the analysis of Martin. Usually, claims under the Cruel and Unusual Clause involve straightforward criminal charges. For example, the situation in Martin involved homeless persons allegedly violating criminal ordinances and the opinion identified its analysis as focusing on the “criminal” nature of the charges over ten times. 920 F.3d at 617. Here, the City has adopted a slightly more circuitous approach than
Martin held the Cruel and Unusual Punishment clause “prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” 920 F.3d at 616. A local government cannot avoid this ruling by issuing civil citations that, later, become criminal offenses. A recent decision by the en banc Fourth Circuit illustrates how the Cruel and Unusual Punishment Clause looks to the eventual criminal penalty, even if there are preliminary civil steps.
The disputes in Manning v. Caldwell for City of Roanoke, 930 F.3d 264 (4th Cir. 2019) (en banc) arose from a Virginia law which allowed a state court to issue a civil order identifying an individual as a “habitual drunkard.” Id. at 268. Once labeled a “habitual drunkard,” the individual was “subject to incarceration for the mere possession of or attempt to possess alcohol, or for being drunk in public.” Id. at 269. A group of homeless alcoholics filed suit claiming, among other theories, the “habitual drunkard” scheme violated the Cruel and Unusual Punishment Clause. In the plaintiffs’ view, the scheme resulted in criminal prosecutions based on their “status,” i.e. alcoholism. See id. at 281.
Using reasoning very similar to that in Martin, the Fourth Circuit found the statutory scheme unconstitutional because
The same reasoning applies here. The anti-camping ordinances prohibit Plaintiffs from engaging in activity they cannot avoid. The civil citations issued for behavior Plaintiffs cannot avoid are then followed by a civil park exclusion order and, eventually, prosecutions for criminal trespass. Imposing a few extra steps before criminalizing the very acts Martin explicitly says cannot be criminalized does not cure the anti-camping ordinances’ Eighth Amendment infirmity.
The City offers a second way to evade the holding in Martin. According to the City, it revised its anti-camping ordinances to allow homeless persons to sleep in City parks. However, the City’s argument regarding the revised anti-camping ordinance is an illusion. The amended ordinance continues to prohibit homeless persons from using “bedding, sleeping bag, or other material used for bedding purposes,” or using stoves, lighting fires, or erecting structures of any kind.
The discrepancy between sleeping without bedding materials, which is permitted under the anti-camping ordinances, and sleeping with bedding, which is not, is intended to distinguish the anti-camping ordinances from Martin and the two Supreme Court precedents underlying Martin, Robinson v. California, 370 U.S. 660 (1962) and Powell v. Texas, 392 U.S. 514 (1968). Under those cases, a person may not be prosecuted for conduct that is involuntary or the product of a “status.” See Martin, 920 F.3d at 617 (citation omitted). The City accordingly argues that sleeping is involuntary conduct for a homeless person, but that homeless persons can choose to sleep without bedding materials and therefore can be prosecuted for sleeping with bedding.
In its order granting summary judgment, the district court correctly concluded the anti-camping ordinances violated the Cruel and Unusual Punishment Clause to the extent they prohibited homeless persons from “taking necessary minimal measures to keep themselves warm and dry while sleeping when there are no alternative forms of shelter available.” The only plausible reading of Martin is
The dissent claims we have misread Martin by “completely disregard[ing] the Powell opinions on which Martin relied, which make unmistakably clear that an individualized showing of involuntariness is required.” Dissent 75. The dissent concedes that pursuant to Martin, the City cannot impose criminal penalties on involuntarily homeless individuals for sitting, sleeping, or lying outside on public property. Dissent 56. Thus, our purported “complete disregard[ ]” for Martin is not regarding the central holding that local governments may not criminalize involuntary conduct. Rather, the dissent believes, based on its
In Robinson, the Supreme Court struck down, under the
Six years later, in Powell, the Court divided 4-1-4 over whether Texas violated the
Pursuant to Marks v. United States, 430 U.S. 188 (1977), the narrowest position which gained the support of five justices is treated as the holding of the Court. In identifying that position, Martin held: “five Justices [in Powell] gleaned from Robinson the principle that ‘that the
In addition to erecting an absolute bar to class litigation of this sort, the dissent would also impose artificial limitations on claims brought pursuant to Martin. The dissent concedes Gloria Johnson has standing to bring individual challenges to most of the City‘s ordinances. But the dissent then speculates that Gloria Johnson may, in fact, not be involuntarily homeless in the City. The dissent would insist that Gloria Johnson, for example, leave the City to
The undisputed evidence establishes Gloria Johnson is involuntarily homeless and there is undisputed evidence showing many other individuals in similar situations. It is undisputed that there are at least around 50 involuntarily homeless persons in Grants Pass, and PIT counts, which Martin relied on to establish the number of homeless persons in Boise, revealed more than 600. See Martin, 920 F.3d at 604. It is undisputed that there is no secular shelter space available to adults. Many class members, including the class representatives, have sworn they are homeless and the City has not contested those declarations. The dissent claims this showing is not enough, implying that Plaintiffs must meet an extremely high standard to show they are involuntarily homeless. Even viewed in the light most favorable to the City, there is no dispute of material fact that the City is home to many involuntarily homeless individuals, including the class representatives. In fact, neither the City nor the dissent has demonstrated there is even one voluntarily homeless individual living in the City.32 In light of the undisputed
The district court concluded the fines imposed under the anti-sleeping and anti-camping ordinances violated the
The City presents no meaningful argument on appeal regarding the excessive fines issue. As for Plaintiffs, they argue the fines at issue were properly deemed excessive because they were imposed for “engaging in involuntary, unavoidable life sustaining acts.” The permanent injunction will result in no class member being fined for engaging in such protected activity. Because no fines will be imposed for protected activity, there is no need for us to address whether hypothetical fines would be excessive.
E.
The final issue is whether Plaintiffs properly pled their challenge to the park exclusion appeals ordinance.
We affirm the district court‘s ruling that the City of Grants Pass cannot, consistent with the
We are careful to note that, as in Martin, our decision is narrow. As in Martin, we hold simply that it is “unconstitutional to [punish] simply sleeping somewhere in public if one has nowhere else to do so.” Martin, 920 F.3d at 590 (Berzon, J., concurring in denial of rehearing en banc). Our decision reaches beyond Martin slightly. We hold, where Martin did not, that class certification is not categorically impermissible in cases such as this, that “sleeping” in the context of Martin includes sleeping with rudimentary forms of protection from the elements, and that Martin applies to civil citations where, as here, the civil and criminal punishments are closely intertwined. Our decision does not address a regime of purely civil infractions, nor
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
COLLINS, Circuit Judge, dissenting:
In Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), we held that “the
Because our opinion in Martin frames the issues here, I begin with a detailed overview of that decision before turning to the facts of the case before us.
A
In Martin, six individuals sued the City of Boise, Idaho, under
Robinson held that a California law that made “it a criminal offense for a person to ‘be addicted to the use of narcotics,‘” 370 U.S. at 660 (quoting
In Powell, a fractured Supreme Court rejected Powell‘s challenge to his conviction, under a Texas statute, for being “found in a state of intoxication in any public place.” 392 U.S. at 517 (quoting
Justice White concurred in the judgment on the narrower ground that Powell had failed to establish the “prerequisites to the possible invocation of the
The four dissenting Justices in Powell agreed that the Texas statute “differ[ed] from that in Robinson” inasmuch as it “covers more than a mere status.” 392 U.S. at 567 (Fortas, J., dissenting). There was, as the dissenters noted, “no challenge here to the validity of public intoxication statutes in general or to the Texas public intoxication statute in particular.” Id. at 558. Indeed, the dissenters agreed that, in the ordinary case “when the State proves such [public]
While acknowledging that the plurality in Powell had “interpret[ed] Robinson as precluding only the criminalization of ‘status,’ not of ‘involuntary’ conduct,” the Martin panel held that the controlling opinion was Justice White‘s concurrence. 920 F.3d at 616. As I have noted, Justice White concluded that the Texas statute against public drunkenness could constitutionally be applied, even to an alcoholic, if the defendant failed to “satisfactorily show[] that it was not feasible for him to have made arrangements to prevent his being in public when drunk and that his extreme drunkenness sufficiently deprived him of his faculties on the occasion in issue.” Powell, 392 U.S. at 552 (White, J., concurring).2 Under Marks v. United States,
The Martin panel quoted dicta in Justice White‘s concurrence suggesting that, if the defendant could make the requisite “showing” that “resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible,” then the Texas statute “[a]s applied” to such persons might violate “the
The Martin panel emphasized that its “holding is a narrow one.” Id. Martin recognized that, if there are sufficient available shelter beds for all homeless persons within a jurisdiction, then of course there can be no
B
With that backdrop in place, I turn to the specific facts of this case.
In the operative Third Amended Complaint, named Plaintiffs Debra Blake, Gloria Johnson, and John Logan sought to represent a putative class of “all involuntarily homeless people living in Grants Pass, Oregon” in pursuing a variety of claims under
5.61.020 Sleeping on Sidewalks, Streets, Alleys, or Within Doorways Prohibited
A. No person may sleep on public sidewalks, streets, or alleyways at any time as a matter of individual and public safety.
B. No person may sleep in any pedestrian or vehicular entrance to public or private property abutting a public sidewalk.
C. In addition to any other remedy provided by law, any person found in
violation of this section may be immediately removed from the premises. 5.61.030 Camping Prohibited
No person may occupy a campsite in or upon any sidewalk, street, alley, lane, public right of way, park, bench, or any other publicly-owned property or under any bridge or viaduct, [subject to specified exceptions].3
6.46.090 Camping in Parks
A. It is unlawful for any person to camp, as defined in GPMC Title 5, within the boundaries of the City parks.
B. Overnight parking of vehicles shall be unlawful. For the purposes of this section, anyone who parks or leaves a vehicle parked for two consecutive hours or who remains within one of the parks as herein defined for purposes of camping as defined in this section for two consecutive hours, without permission from the City Council, between the hours of midnight and 6:00 a.m. shall be considered in violation of this Chapter.
6.46.350 Temporary Exclusion from City Park Properties
An individual may be issued a written exclusion order by a police officer of the Public Safety Department barring said individual from all City Park properties for a period of 30 days, if within a one-year period the individual:
A. Is issued 2 or more citations for violating regulations related to City park properties, or
B. Is issued one or more citations for violating any state law(s) while on City park property.4
After the parties filed cross-motions for summary judgment, the district court in July 2020 granted Plaintiffs’ motion in relevant part and denied the City‘s motion. The district court held that, under Martin, the City‘s enforcement of the above-described ordinances violated the Cruel and Unusual Punishments Clause. The court further held that, for similar reasons, the ordinances imposed excessive fines in violation of the
After Plaintiffs voluntarily dismissed those claims as to which summary judgment had been denied to both sides, the district court entered final judgment declaring that the City‘s enforcement of the anti-camping and anti-sleeping
B. Is issued one or more citations for violating any state law(s) while on City park property.
The foregoing exclusion order shall only apply to the particular City park in which the offending conduct under 6.46.350(A) or 6.46.350(B) occurred.
The City timely appealed from that judgment and from the district court‘s subsequent award of attorneys’ fees.
II
Before turning to the merits, I first address the question of our jurisdiction under
“In limiting the judicial power to ‘Cases’ and ‘Controversies,’
As “an indispensable part of the plaintiff‘s case,” each of these elements of Article III standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because, as in Lujan, this case arises from a grant of summary judgment, the question is whether, in seeking
Plaintiffs’ operative complaint named three individual plaintiffs as class representatives (John Logan, Gloria Johnson, and Debra Blake), and we have jurisdiction to address the merits of a particular claim if any one of them sufficiently established Article III standing as to that claim. See Secretary of the Interior v. California, 464 U.S. 312, 319 n.3 (1984) (“Since the State of California clearly does have standing, we need not address the standing of the other [plaintiffs], whose position here is identical to the State‘s.“); see also Bates v. United Parcel Service, Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc) (“In a class action, standing is satisfied if at least one named plaintiff meets the requirements.“). Accordingly, I address the showing made by each named Plaintiff in support of summary judgment.
In my view, Plaintiff John Logan failed to establish that he has standing to challenge any of the ordinances in question. In support of his motion for summary judgment, Logan submitted a half-page declaration stating, in conclusory fashion, that he is “involuntarily homeless in Grants Pass,” but that he is “sleeping in [his] truck at night at a rest stop North of Grants Pass.” He asserted that he “cannot sleep in the City of Grants Pass for fear that [he] will be awakened, ticketed, fined, moved along, trespassed[,] and charged with Criminal Trespass.” Logan also previously submitted two declarations in support of his class certification motion. In them, Logan stated that he has been
By contrast, Plaintiff Gloria Johnson made a sufficient showing that she has standing to challenge the general anti-camping ordinance,
Debra Blake sufficiently established her standing, both in connection with the class certification motion and the summary judgment motion. Although she was actually living in temporary housing at the time she submitted her declarations in support of class certification in March and June 2019, she explained that that temporary housing would soon expire; that she would become homeless in Grants Pass again; and that she would therefore again be subject to being “arrested, ticketed and prosecuted for sleeping outside or for covering myself with a blanket to stay warm.” And, as her
However, Blake subsequently passed away during this litigation, as her counsel noted in a letter to this court submitted under
There is, however, presently no class representative who meets the requirements for representing the certified class with respect to the anti-sleeping, park-exclusion, and criminal trespass ordinances.8 Although that would normally require a remand to permit the possible substitution of a new class member, see Kuahulu v. Employers Ins. of Wausau, 557 F.2d 1334, 1336–37 (9th Cir. 1977), I see no need to do so here, and that remains true even if one assumes that the failure to substitute a new class representative might otherwise present a potential jurisdictional defect. As noted earlier, we have jurisdiction to address all claims concerning the two anti-camping ordinances, as to which Johnson has
III
I therefore turn to whether the district court properly certified the class under
A
“To obtain certification of a plaintiff class under
As the earlier discussion of Martin makes clear, the
Of course, such an individualized inquiry is not required—and no
In light of this understanding of Martin, the district court clearly erred in finding that the requirement of commonality was met here. “What matters to class certification is not the raising of common ‘questions‘—even in droves—but rather, the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Wal-Mart, 564 U.S. at 350 (simplified). Under Martin, the answer to the question whether the City‘s enforcement of each of the anti-camping ordinances violates the
For similar reasons, the district court also erred in concluding that the requirements of
Because Martin requires an assessment of each person‘s individual circumstances in order to determine whether application of the challenged ordinances violates the
B
The majority provides two responses to this analysis, but both of them are wrong.
First, the majority contends that Martin established a bright-line rule that “the government cannot prosecute homeless people for sleeping in public“—or, presumably, for camping—“if there ‘is a greater number of homeless individuals in [a jurisdiction] than the number of available’ shelter spaces.” See Opin. at 13 (quoting Martin, 920 F.3d at 617). Because, according to the majority, Martin establishes a simple “formula” for determining when all enforcement of anti-camping and anti-sleeping ordinances
Second, the majority states that, to the extent that Martin requires such an individualized showing to establish an
The majority cites no authority for this audacious bootstrap argument. If a person‘s individual circumstances are such that he or she has no “access to adequate temporary shelter“—which necessarily subsumes (among other things) the determination that there are no shelter beds available—then the entire (highly individualized) question of the City‘s liability to that person under Martin‘s standards has been shifted into the class definition. That is wholly improper. See Olean Wholesale Grocery Coop. v. Bumble Bee Foods, 31 F.4th 651, 670 n.14 (9th Cir. 2022) (en banc) (“A court may not . . . create a ‘fail safe’ class that is defined to include only those individuals who were injured by the allegedly unlawful conduct.“); see also Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1138 n.7 (9th Cir. 2016) (stating that it would be improper to define a class in such a way “as to preclude membership unless the liability of the defendant is established” (simplified)).
The majority nonetheless insists that “[m]embership in the class” here “has no connection to the success of the
To the extent that the majority instead suggests that the class definition requires only an involuntary lack of access to regular or permanent shelter to qualify as “involuntarily
IV
Given these conclusions as to standing and class certification, all that remains are the individual claims of Johnson for prospective relief against enforcement of the two anti-camping ordinances. In my view, these claims fail as a matter of law.
Johnson‘s sole basis for challenging these ordinances is that they prohibit her from sleeping in her van within the City. In her declaration in support of class certification, however, Johnson specifically stated that she has “often” been able to sleep in her van by parking outside the City limits. In a supplemental declaration in support of summary judgment, she affirmed that these facts “remain true,” but she added that there had also been occasions in which, outside the City limits, county officers had told her to “move on” when she “was parked on county roads” and that, when she parked “on BLM land“—i.e., land managed by the
As an initial matter, Johnson‘s declaration provides no non-conclusory basis for finding that she lacks any option other than sleeping in her van. Although her declaration notes that she worked as a nurse “for decades” and that she now collects social security benefits, the declaration simply states, without saying anything further about her present economic situation, that she “cannot afford housing.” Her declaration also says nothing about where she lived before she began living “on the street” a few years ago, and it says nothing about whether she has any friends or family, in Grants Pass or elsewhere, who might be able to provide assistance.12 And even assuming that this factual showing would be sufficient to permit a trier of fact to find that Johnson lacks any realistic option other than sleeping in her van, we cannot affirm the district court‘s summary judgment in Johnson‘s favor without holding that her showing was so overwhelming that she should prevail as a matter of law. Because a reasonable trier of fact could find, in light of these evidentiary gaps, that Johnson failed to carry her burden of
But even assuming that Johnson had established that she truly has no option other than sleeping in her van, her showing is still insufficient to establish an
In nonetheless finding that the anti-camping ordinances’ prohibition on sleeping in vehicles violates the
V
Accordingly, I would remand this case with instructions (1) to dismiss as moot the claims of Debra Blake as well as Plaintiffs’ claims with respect to
VI
Up to this point, I have faithfully adhered to Martin and its understanding of Powell, as I am obligated to do. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). But given the importance of the issues at stake, and the gravity of Martin‘s errors, I think it appropriate to conclude by noting my general agreement with many of the points made by my colleagues who dissented from our failure to rehear Martin en banc.
In particular, I agree that, by combining dicta in a concurring opinion with a dissent, the panel in Martin plainly misapplied Marks’ rule that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest
Moreover, the correct answer to the question left open in Powell was the one provided in Justice Marshall‘s plurality opinion in that case: there is no federal “constitutional doctrine of criminal responsibility.” 392 U.S. at 534. In light of the “centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral accountability of an individual for his antisocial deeds,” including the “doctrines of actus reus, mens rea, insanity, mistake, justification, and duress,” the “process of adjustment” of “the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man” is a matter that the Constitution leaves within “the province of the States” or of Congress. Id. at 535–36. “There is simply no indication in the history of the
Further, it is hard to deny that Martin has “generate[d] dire practical consequences for the hundreds of local governments within our jurisdiction, and for the millions of people that reside therein.” Id. at 594 (M. Smith, J., dissenting from denial of rehearing en banc). Those harms, of course, will be greatly magnified by the egregiously flawed reconceptualization and extension of Martin‘s holding in today‘s decision, and by the majority‘s equally troubling reworking of settled class-action principles. With no sense of irony, the majority declares that no such harms are demonstrated by the record in this case, even as the majority largely endorses an injunction effectively requiring Grants Pass to allow the use of its public parks as homeless encampments. Other cities in this circuit can be expected to suffer a similar fate.
In view of all of the foregoing, both Martin and today‘s decision should be overturned or overruled at the earliest
* * *
I respectfully but emphatically dissent.
Notes
2013: 74 total tickets
2014: 228 total tickets
2015: 80 total tickets
2016: 47 total tickets
2017: 99 total tickets
2018: 46 total tickets
An individual may be issued a written exclusion order by a police officer of the Public Safety Department barring said individual from a City park for a period of 30 days, if within a one-year period the individual:
A. Is issued two or more citations in the same City park for violating regulations related to City park properties, or
Powell, 392 U.S. at 548-49 (White, J., concurring) (internal citation omitted). Finally, neither the remainder of Justice White‘s concurrence nor the dissenting opinion explicitly indicates one‘s status may only be invoked as a defense. Rather, Justice White and the dissenters simply agreed that, if Powell‘s status made his public intoxication involuntary, he could not be prosecuted. There is no conceivable way to interpret Martin as adopting our dissenting colleague‘s position that one‘s status must be invoked as a defense. But even assuming the burden must be placed on the party wishing to invoke a status, the class representatives established there is no genuine dispute of material fact they have the relevant status of being involuntarily homeless.If it cannot be a crime to have an irresistible compulsion to use narcotics, I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law. Similarly, the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or for being drunk.