Gloria Johnson, et al v. City of Grants PassGloria Johnson, et al v. City of Grants Pass
SUMMARY**
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 first rejected the City’s argument that the district court lacked jurisdiction because plaintiffs’ claims were moot or because plaintiffs failed to identify any relief that was within a federal court’s power to redress. The panel held that there was abundant evidence in the record establishing that homeless persons were injured by the City’s enforcement actions in the past and it was undisputed that enforcements have continued. The panel further held that the relief sought by plaintiffs, enjoining enforcement of a few municipal ordinances aimed at involuntary homeless persons, was redressable within the limits of Article III. The death of class representative Debra Blake while the matter was on appeal did not moot the class’s claims as to all challenged ordinances except possibly the anti-sleeping ordinance. The panel vacated the summary judgment as to that ordinance and remanded to allow the district court the opportunity to substitute a class representative in Blake’s stead. The remaining class representatives had standing to challenge the park exclusion, criminal trespass and anti-camping ordinances.
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.
Dissenting, Judge Collins stated that Martin seriously misconstrued the Eighth Amendment and the Supreme Court’s caselaw construing it, but even assuming that Martin remained good law, today’s decision—which both misread and greatly expanded Martin’s holding—was egregiously wrong. To make things worse, the majority opinion combined its gross misreading of Martin, which requires an individualized inquiry, with a flagrant disregard of settled class-certification principles pertaining to commonality under
COUNSEL
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 Curiae University of Miami School of Law, Human Rights Clinic and National Homelessness Law Center.
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
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.
OPINION
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
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 of the class.2 After the plaintiffs voluntarily dismissed some claims not resolved at summary judgment, the district court issued a permanent injunction prohibiting enforcement against the class members of some City ordinances, at certain times, in certain places. The City now appeals, arguing this case is moot, the class should not have been certified, the claims fail on the merits, and Plaintiffs did not adequately plead one of their theories. On the material aspects of this case, the district court was right.3
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.
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 circuit court judge to $35 for a first offense and $50 for a second offense. GPMC 1.36.010(K).
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 exclusion” order, but subsequently was found in a city park, that individual would be prosecuted for criminal trespass.
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
Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018).5 That case served as the backdrop for this entire litigation.
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).
The formula established in Martin is that the government cannot prosecute homeless people for sleeping in public if there “is a greater number of homeless individuals in [a jurisdiction] than the number of available” shelter spaces. Id. (alteration in original). When assessing the number of shelter spaces, Martin held shelters with a “mandatory religious focus” could not be counted as available due to potential violations of the First Amendment’s Establishment Clause. Id. at 609–10 (citing Inouye v. Kemna, 504 F.3d 705, 712–13 (9th Cir. 2007)).
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
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]
people live in Grants Pass,” and “almost all of the homeless people in Grants Pass are involuntarily homeless. There is simply no place in Grants Pass for them to find affordable housing or shelter. They are not choosing to live on the street or in the woods.”
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
In addition to the Gospel Rescue Mission, the City itself operated a “sobering center” where law enforcement could transport intoxicated or impaired persons. That facility consisted of twelve locked rooms with toilets where intoxicated individuals could sober up. The rooms did not have beds. The City also provided financial support to the Hearts with a Mission Youth Shelter, an 18-bed facility where unaccompanied minors aged 10 to 17 could stay for up to 72 hours, and could stay even longer if they had parental consent.
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 Amendment’s Excessive Fines Clause.9 Finally, the court held the appeals process for park exclusions violated procedural due process under the Due Process Clause of the Fourteenth Amendment.
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
Approximately one month after the summary judgment order, the district court issued a judgment which included a permanent injunction that provided a complicated mix of relief. First, the district court declared the ordinance regarding the appeals of park exclusions failed to provide “adequate procedural due process,” but that ordinance was not permanently enjoined. Instead, the district court enjoined only the enforcement of the underlying park exclusion ordinance. Next, the district court declared enforcement of the anti-sleeping and anti-camping ordinances against class members “violates the Eighth Amendment prohibition against cruel and unusual punishment” and “violates the Eighth Amendment prohibition against excessive fines.” Without explanation, however, the district court did not enjoin those ordinances in their entirety. Rather, the district court entered no injunctive relief regarding the anti-sleeping ordinance. But the district court permanently enjoined enforcement of the anti-camping ordinances, as well as an ordinance regarding “criminal trespassing on city property related to parks,” in all City parks at night except for one park where the parties agreed the injunction need not apply.11 The district court also permanently enjoined enforcement of the anti-camping ordinances during daytime hours unless an initial warning was given “at least 24 hours before enforcement.” Accordingly, under the permanent injunction, the anti-camping ordinances may be enforced under some circumstances during the day, but never at night.
The City appealed and sought initial en banc review to clarify the scope of Martin. The petition for initial hearing en banc was denied.
II.
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.
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 jurisdiction before proceeding to the merits,” and plaintiffs must demonstrate standing as a necessary component of jurisdiction. Lance v. Coffman, 549 U.S. 437, 439 (2007). To have Article III standing, a plaintiff must show (1) a concrete and particularized injury, (2) caused by the challenged conduct, (3) that is likely redressable by a favorable judicial decision. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). For purposes of injunctive relief, “[a]bstract injury is not enough”—the plaintiff must have sustained or be in immediate danger “of sustaining some direct injury as the result of the challenged” law. O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (quotation marks and citation omitted).
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
its power to determine the legality of the practice.’” Friends of the Earth, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). This is so “because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012). Thus, the City “bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190. Instead of the City making it “absolutely clear” it has stopped enforcement activities, the record shows ongoing enforcement.
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
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 enforcement continued.13 It is plainly inaccurate for the City to claim all enforcement ceased. The ongoing enforcement activities establish the City did not meet its “formidable burden” of showing the challenged activities will not recur. Friends of the Earth, 528 U.S. at 190. The City’s mootness argument fails.14
The City’s other jurisdictional argument is that Plaintiffs’ claims are not redressable. According to the City, any possible relief intrudes inappropriately upon matters of policy best left to executive and legislative discretion. We disagree. Consistent with Martin, the district court granted limited relief enjoining enforcement of a few municipal ordinances at certain times, in certain places, against certain persons. None of the cases cited by the City credibly support its argument that the district court injunction overstepped the judiciary’s limited authority under the Constitution. Contrary to the City’s position, enjoining enforcement of a few municipal ordinances aimed at involuntarily homeless persons cannot credibly be compared to an injunction seeking to require the federal government to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Juliana v. United States, 947 F.3d 1159, 1164–65 (9th Cir. 2020). The relief sought by Plaintiffs was redressable within the limits of Article III. See Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (holding a plaintiff’s burden to demonstrate redressability is “relatively modest”) (citation omitted).
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, Gloria Johnson15 and John Logan,16
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 after his own claims become moot, provided that several requirements are met.18 See Bates v. United Parcel Serv., Inc., 511 F.3d 974, 987–88 (9th Cir. 2007) (en banc). If Debra Blake’s challenge to the anti-sleeping ordinance became moot before she passed away, she could have continued to pursue the challenge on behalf of the class under the doctrine of Sosna. But we have not found any case applying Sosna and Franks to a situation such as this, in which the death of a representative causes a class to be unrepresented as to part (but not all) of a claim. The parties did not brief this issue and no precedent indicates whether this raises a jurisdictional question, which would deprive us of authority to review the merits of the anti-sleeping ordinance challenge, or a matter of
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 anti-sleeping ordinance and remand to determine whether a substitute representative is available as to that challenge alone. See Cobell v. Jewell, 802 F.3d 12, 23–24 (D.C. Cir. 2015) (discussing substitution of a party during appeal). Substitution of a class representative may significantly aid in the resolution of the issues in this case. Remand will not cause significant
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
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 individuals total who do not have access to any shelter” in the City. The officer admitted, however, it “would be extremely difficult to accurately estimate the population of people who are homeless in Grants Pass regardless of the definition used.”
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
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 question resolved a crucial aspect of the claims shared by all class members.
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 have
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
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 citations categorized as “civil” by a governmental authority.26
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 simply establishing violation of its ordinances as criminal offenses. Instead, the City issues civil citations under the ordinances. If an individual violates the ordinances twice, she can be issued a park exclusion order. And if the individual is found in a park after issuance of the park exclusion order, she is cited for criminal trespass. See
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 it provided punishment based on the plaintiffs’ status. Of particular relevance here, the Fourth Circuit reasoned the fact that Virginia’s “scheme operate[d] in two steps” did not change the analysis. Id. 283. Issuing a civil order first, followed by a criminal charge, was a “two-pronged statutory scheme” potentially “less direct” than straightforwardly criminalizing the status of alcohol addiction. Id. But the scheme remained unconstitutional because it “effectively criminalize[d] an illness.” Id. The fact that Virginia “civilly brands alcoholics as ‘habitual drunkards’ before prosecuting them for involuntary manifestations of their illness does nothing to cure the unconstitutionality of this statutory scheme.” Id.
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 that it applies to the act of “sleeping” in public, including articles necessary to facilitate sleep. In fact, Martin expressed concern regarding a citation given to a woman who had been found sleeping on the ground, wrapped in blankets. 920 F.3d at 618. Martin noted that citation as an example of the anti-camping ordinance being “enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements.” Id. Martin deemed such enforcement unconstitutional. Id. It follows that the City cannot enforce its anti-camping ordinances to the extent they prohibit “the most rudimentary precautions” a homeless person might take against the elements.28 The City’s position that it is entitled to enforce a complete prohibition on “bedding, sleeping bag, or other material used for bedding purposes” is incorrect.
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,
interpretation of the Supreme Court opinions underlying Martin, that the
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
The law that the dissent purports to unearth in Justice White‘s concurrence is not the “narrowest ground” which received the support of five justices. No opinion in Powell or Martin supports the dissent‘s assertion that Powell offers exclusively an “affirmative ‘defense‘” that cannot be litigated in a class action.31 Dissent 53, 71. Although the dissent might prefer that these principles find support in the controlling law, they do not. We thus do not misread Martin by failing to apply the principles found solely in Justice White‘s concurrence. Rather, we adhere to the narrow holding of Martin adopting the narrowest ground shared by five justices in Powell: a person cannot be prosecuted for involuntary conduct if it is an unavoidable consequence of one‘s status.
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,
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 facts in the record underlying the district court‘s summary judgment ruling that show Plaintiffs are involuntarily homeless, and the complete absence of evidence that Plaintiffs are voluntarily homeless, we agree with the district court that Plaintiffs such as Gloria Johnson are not voluntarily homeless and that the anti-camping ordinances are unconstitutional as applied to them unless there is some place, such as shelter, they can lawfully sleep.33
D.
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.
III.
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 does it prohibit the City from attempting other solutions to the homelessness issue.
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
I
Because our opinion in Martin frames the issues here, I begin with a detailed
A
In Martin, six individuals sued the City of Boise, Idaho, under
Although the text of the
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] presence in a state of intoxication, this will be sufficient for conviction, and the punishment prescribed by the State may, of course, be validly imposed.” Id. at 569. Instead, the dissenters concluded that the application of the statute to Powell was unconstitutional “on the occasion in question” in light of the Texas trial court‘s findings about Powell‘s inability to control his condition. Id. at 568 n.31 (emphasis added). Those findings concerning Powell‘s “constitutional defense,” the dissenters concluded, established that Powell “was powerless to avoid drinking” and “that, once intoxicated, he could not prevent himself from appearing in public places.” Id. at 558, 568; see also id. at 525 (plurality) (describing the elements of the “constitutional defense” that Powell sought to have the Court recognize).
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, 430 U.S. 188 (1977), this narrower reasoning given by Justice White for joining the Powell majority‘s judgment upholding the conviction constitutes the Court‘s holding in that case. See id. at 193 (“When 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 grounds.‘” (citation omitted)); see also United States v. Moore, 486 F.2d 1139, 1151 (D.C. Cir. 1973) (en banc) (Wilkey, J., concurring) (concluding that the judgment in Powell rested on the overlap in the views of “four members of the Court” who held that Powell‘s acts of public drunkenness “were punishable without question” and the view of Justice White that Powell‘s acts “were punishable so long as the acts had not been proved to be the product of an established irresistible compulsion“).
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.
Plaintiffs’ complaint also challenged the following “park exclusion” ordinance as a violation of their “Eighth and
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
In an August 2019 order, the district court certified a class seeking declaratory and injunctive relief with respect to Plaintiffs’
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.
ordinances (
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 summary judgment, Plaintiffs “‘set forth’ by affidavit or other evidence ‘specific facts‘” in support of each element of standing. Id. (citation omitted). Moreover, “standing is not dispensed in gross,” and therefore “a plaintiff must demonstrate standing for each claim he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352–53 (2006) (emphasis added) (citation omitted).
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 homeless in Grants Pass for nearly seven of the last 10 years; that there have been occasions in the past in which police in Grants Pass have awakened him in his car and instructed him to move on; and that he now generally sleeps in his truck outside of Grants Pass. Logan has made no showing that, over the seven years that he has been homeless, he has ever been issued a citation for violating the challenged ordinances, nor has he provided any facts to establish either that the threat of such a citation is “certainly impending” or that “there is a substantial risk” that he may be issued a citation. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation and internal quotation marks omitted). At best, his declarations suggest that he would prefer to sleep in his truck within the City limits rather than outside them, and that he is subjectively deterred from doing so due to the City‘s ordinances. But such “[a]llegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13–14 (1972). Nor has Logan provided any facts that would show that he has any actual intention or plans to stay overnight in the City. See Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir. 2010) (“[W]e have concluded that pre-enforcement plaintiffs who failed to allege a concrete intent to violate the challenged law could not establish a credible threat of enforcement.“). Even if his declarations could be generously construed as asserting an intention to stay in the City at some future point, “[s]uch ‘some day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the ‘actual or imminent’ injury that [the Court‘s] cases require.” Lujan, 504 U.S. at 564; cf. Driehaus, 573 U.S. at 161 (permitting pre-enforcement challenge against ordinance regulating election-related speech where plaintiffs’ allegations identified “specific statements they intend[ed] to make in future election cycles“). And, contrary to what the majority suggests, see Opin. at 24 n.16, Logan‘s vaguely described knowledge about what has happened to other people cannot establish his standing. Accordingly, Logan failed to carry his burden to establish standing for the prospective relief he seeks.
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 declaration at summary judgment showed, that is exactly what happened: in September 2019, she was cited for sleeping in the park in violation of
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 sufficient standing to represent the certified class. And, as I shall explain, the class as to those claims should be decertified, and the reasons for that decertification rest on cross-cutting grounds that apply equally to all claims. As a result, I conclude that we have jurisdiction to order the complete decertification of the class as to all claims, without the need for a remand to substitute a new class representative as to the anti-sleeping, park-exclusion, and criminal trespass ordinances. Cf. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 98 (1998) (holding that, where “a merits issue [is] dispositively resolved
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 must cease, it presents a common question that may be resolved on a classwide basis. See Opin. at 13; see also Opin. at 28–29, 31. As the above analysis makes clear, the majority‘s premise is incorrect. Martin states that, if there are insufficient available beds at shelters, then a jurisdiction “cannot prosecute homeless individuals for ’involuntarily sitting, lying, and sleeping in public.‘” 920 F.3d at 617 (emphasis added). The lack of adequate shelter beds thus merely eliminates a safe-harbor that might otherwise have allowed a
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
The majority nonetheless insists that “[m]embership in the class” here “has no connection to the success of the underlying claims.” See Opin. at 32 n.23. That is obviously false. As I have explained, Martin‘s understanding of when a person “involuntarily” lacks “access to adequate temporary shelter” or to “a single place where [he or she] can lawfully be,” see 920 F.3d at 617 & n.8 (citations omitted), requires an individualized inquiry into a given person‘s circumstances at a particular moment. By insisting that a common question exists here because Martin‘s involuntariness standard has been folded into the class definition, the majority is unavoidably relying on a fail-safe class definition that improperly subsumes this crucial individualized merits issue into the class definition. The majority‘s artifice renders the limitations of
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 homeless,” its argument collapses for a different reason. Because Martin‘s
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
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 proof on this preliminary point, summary judgment in her favor was improper.13
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
Finally, because the district court‘s reliance on 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
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 grounds.‘” Marks v. United States, 430 U.S. 188, 193 (1977) (emphasis added) (citation omitted). Under a correct application of Marks, the holding of Powell is that there is no constitutional obstacle to punishing conduct that has not been shown to be involuntary, and the converse question of what rule applies when the conduct has been shown to be involuntary was left open. See Martin, 920 F.3d at 590–93 (M. Smith, J., dissenting from denial of rehearing en banc) (explaining that, under a proper application of Marks, “‘there is definitely no Supreme Court holding’ prohibiting the criminalization of involuntary conduct” (citation omitted)).
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
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.
* * *
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.