Johnson v. City of Dallas, Tex., 61 F.3d 442

Johnson v. City of Dallas, Tex.

61 F.3d 442

5th Cir.

1995

Check Treatment

DUHÉ, Circuit Judge:

Appellants, the City of Dallas, et al., appeal from the district court’s August 18,1994 memorandum opinion and order granting in part and denying in part Appellees’ application for preliminary injunction. Because we find that Appellees are without standing to raisе their Eighth Amendment claim, we reverse, vacate the preliminary injunction and remand with instructions to dismiss Appel-lees’ Eighth Amendment claims.

I. BACKGROUND

Plaintiffs, seeking to represent a class 1 оf homeless persons, filed this action asserting that various City of Dallas (City) ordinances, as enforced, violated their First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendment rights. On May 20, 1994, the district court, after a hearing, entered a temporary restraining order (TRO) enjoining the City from arresting, harassing and/оr otherwise interfering with Appellees and those they represent. On June 2,1994, the court granted in part and denied in part Appellеes’ motion for preliminary injunction. Specifically, the district court dissolved that portion of the TRO that enjoined the City from enforсing the Texas Criminal Trespass Statute. 2 On August 18, 1994, after additional briefing, the district court entered a memorandum opinion and order 3 in which he reconsidered and modified his June 2nd order.

The district court concluded that, as applied, the sleeping in public ordinance failed to pass constitutional muster under an Eighth Amendmеnt analysis, 4 and entered a preliminary injunction enjoining its enforcement. However, the court concluded that the remaining ordinances were constitutionally valid. Appellees have not filed a cross-appeal; therefore only the district cоurt’s Eighth Amendment ruling on the sleeping in public ordinance is presently before the court.

II. STANDING

Appellants assert that Appellees lack standing to raise an Eighth Amendment challenge to the sleeping in public ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ordinance. We agree. Although this issue is raised for the first time on appeal, standing is jurisdic *444 tional, and may be raised at any time. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603 (1990).

It is a long-settled principle that standing cannot be “inferred argumentatively from averments in the pleаdings,” but rather “must affirmatively appear in the record.” And it is the burden of “the party who seeks the exercise of jurisdiction in his favor,” “clеarly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” Thus, petitionеrs in this case must “allege ... facts essential to show jurisdiction. It [they] fai[l] to make the necessary allegations, [they have] no standing.”

Id. at 231,110 S.Ct. at 608 (citations omitted, modification in original).

Thе law is well settled that “a plaintiff who has not been prosecuted under a criminal statute does not normally have standing to challenge the statute’s constitutionality.” See, Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (“An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes.”); see also, Palermo v. Rorex, 806 F.2d 1266, 1271 (5th Cir.1987), ce rt. denied, 484 U.S. 819, 108 S.Ct. 77, 98 L.Ed.2d 40 (1987) (“The cruel and unusual punishment clause of the Eighth Amendment applies only in criminal actions, following a conviction.”). 5

Nonetheless, Appellees urge us to follow the lead of Joyce v. City and County of San Francisco 6 wherein the district court spun certain language out of the Supreme Court’s Ingraham v. Wright opinion to weave a new theory of Eighth Amendment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍jurisprudence out of whole cloth. In Joyce, the district court rejected the City and County of San Francisco’s assertion that plaintiffs lacked Eighth Amendment standing to challenge the cоnstitutionality of certain ordinances because they had not been convicted of violating the ordinances. An examinatiоn of the Ingraham case readily displays the fallacy of the court’s conclusion.

In Ingraham v. Wright, the Supreme Court recognized that the

Cruel and Unusual Punishments Clause [of the Eighth Amendment] circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third, it imposes substantive limits on what can be made сriminal and punished as such.

430 U.S. at 667, 97 S.Ct. at 1410 (citations omitted, emphasis supplied). The Joyce court relied on the above emphasized language for the proposition that an accusеd may challenge a statute, prior to conviction, on the basis that it is outside the Eighth Amendment’s “substantive limits on what can be made criminаl.” 846 F.Supp. at 853.

However, the Joyce court ignored the remaining language of the Ingraham opinion. As stated previously, Ingraham stands for the proposition that the Eighth Amendment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“was designed to protect those convicted of crimes.” Ingraham v. Wright, 430 U.S. at 664, 97 S.Ct. at 1409. The mere fact that a convicted person can attack the Eighth Amendment validity of a law does not affect *445 this basic tenet. In fact, an examination of Robinson v. California, 7 the case on which the Court rеlied for its conclusion that the Eighth Amendment places substantive limits on the criminal law, runs contrary to Joyce’s holding; because Robinson involved a post conviction challenge to the validity of a California law. Robinson v. California, 370 U.S. at 663, 82 S.Ct. at 1418-19. The Joyce court plainly reached an incorrect result on this issue, and we have found no other authority supporting Appellees’ proposition.

We have thoroughly examined the designated record on appeal. While we find that numerous tickets have been issuеd, we find no indication that any Appellees have been convicted of violating the sleeping in public ordinance. “[I]f none of the namеd plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, nonе may seek relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

As the Supreme Court has set forth previously, “[t]he case-or controversy doctrines state fundamental limits on federal judicial power in our system of government. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The Art. Ill doctrine that requires a litigant to have ‘standing’ to invoke the power of the court is perhaps the most important of these doctrines.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Appеllees do not have standing to raise an Eighth Amendment challenge to the sleeping in public ordinance, and therefore the district court was without jurisdiction to issue the preliminary injunction enjoining its enforcement.

III. CONCLUSION

We REVERSE the holding of the district court on Appelleеs’ Eighth Amendment challenge, VACATE the preliminary injunction and REMAND with instructions to dismiss Appellees’ Eighth Amendment challenge for lack of standing.

REVERSED, VACATED and REMANDED with instructions.

Notes

. Subsequent tо the date of this appeal, the district judge certified this lawsuit as a class action pursuant to Fed.R.Civ.P. 23(b)(2).

. Texas Penal Code § 30.05. The district court specifically permitted uniform enforcement of the statute on city property.

. Johnson v. City of Dallas, 860 F.Supp. 344 (N.D.Tex.1994).

. The district court rejected the remaining constitutional challenges to the sleeping in public ordinance.

. It is equally evident that the state does not incur Eighth Amendment liability even where injury occurs as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the result of official сonduct, unless the individual was being held in custody after criminal conviction. See Ingraham v. Wright, 430 U.S. at 664, 97 S.Ct. at 1409 (Corporal punishment of school children does not violаte Eighth Amendment); Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (In excessive force suit brought trader 42 U.S.C. § 1983, "the less protective Eighth Amendment standard applies 'only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”'); Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.1987) (same); Hewitt v. Truth or Consequences, 758 F.2d 1375, 1377 n. 2 (10th Cir.1985), cert. denied, 474 U.S. 844, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985) (same); D’Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (11th Cir.1995) (Deputy sheriff's conduct toward homeless people could not constitute Eighth Amendment violation where homeless persons had not been convicted of any crime.).

. 846 F.Supp. 843 (N.D.Cal.1994).

. 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).