Edward JONES; Patricia Vinson; George Vinson; Thomas Cash; Stanley Barger; Robert Lee Purrie, Plaintiffs-Appellants,
v.
CITY OF LOS ANGELES; William Bratton, Chief; Charles Beck, Captain, in their official capacity, Defendants-Appellees.
No. 04-55324.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 6, 2005.
Filed April 14, 2006.
COPYRIGHT MATERIAL OMITTED Ben Wizner, Peter Eliasberg, and Mark D. Rosenbaum, ACLU Foundation of Southern California, Los Angeles, CA; Carol A. Sobel, Law Offices of Carol A. Sobel, Santa Monica, CA; and Adam B. Wolf, ACLU Drug Law Reform Project, Santa Cruz, CA, for Plaintiffs-Appellants.
Amy Jo Field, Deputy City Attorney, Los Angeles, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Central District of California; Edward Rafeedie, District Judge, Presiding. D.C. No. CV-03-01142-ER.
Before RYMER and WARDLAW, Circuit Judges, and REED,* District Judge.
Opinion by Judge Wardlaw; Dissent by Judge Rymer
WARDLAW, Circuit Judge.
Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed this Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits. Appellants seek limited injunctive relief from enforcement of the ordinance during nighttime hours, i.e., between 9:00 p.m. and 6:30 a.m., or at any time against the temporarily infirm or permanently disabled. We must decide whether the Eighth Amendment right to be free from cruel and unusual punishment prohibits enforcement of that law as applied to homeless individuals involuntarily sitting, lying, or sleeping on the street due to the unavailability of shelter in Los Angeles.
I. Facts and Procedural Background
The facts underlying this appeal are largely undisputed. Edward Jones, Patricia Vinson, George Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie ("Appellants") are homeless individuals who live on the streets of Los Angeles's Skid Row district. Appellees are the City of Los Angeles, Los Angeles Police Department ("L.A.P.D.") Chief William Bratton, and Captain Charles Beck ("Appellees" or "the City"). Federal law defines the term "homeless individual" to include (1) an individual who lacks a fixed, regular, and adequate nighttime residence; and
(2) an individual who has a primary nighttime residence that is—
(A) a supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill);
(B) an institution that provides a temporary residence for individuals intended to be institutionalized; or
(C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
Stewart B. McKinney Homeless Assistance Act of 1987 § 103(a), 42 U.S.C. § 11302(a) (2000). Appellants are six of the more than 80,000 homeless individuals in Los Angeles County on any given night. See L.A. Homeless Servs. Auth., Los Angeles Continuum of Care, Exhibit 1 Narrative, at 2-17 (2001); see also Patrick Burns et al., Econ. Roundtable, Homeless in LA: A Working Paper for the 10-Year Plan To End Homelessness in Los Angeles County (2003) (estimating that more than 253,000 individuals were homeless in Los Angeles County at some point during 2002).
The term "Skid Row" derives from the lumber industry practice of building a road or track made of logs laid crosswise over which other logs were slid. Christine Ammer, The American Heritage Dictionary of Idioms 382 (paperback ed.2003). By the 1930s, the term was used to describe the area of town frequented by loggers and densely populated with bars and brothels. Id. Beginning around the end of the nineteenth century, the area now known as Los Angeles's Skid Row became home to a transient population of seasonal laborers as residential hotels began to develop. See Mayor's Citizens' Task Force on Cent. City East, To Build a Community 5 (1988). For decades Skid Row has been home for "the down and out, the drifters, the unemployed, and the chronic alcoholic[s]" of Los Angeles. Id. Covering fifty city blocks immediately east of downtown Los Angeles, Skid Row is bordered by Third Street to the north, Seventh Street to the south, Alameda Street to the east, and Main Street to the west.
Los Angeles's Skid Row has the highest concentration of homeless individuals in the United States. Charlie LeDuff, In Los Angeles, Skid Row Resists an Upgrade, N.Y. Times, July 15, 2003, at A1. According to the declaration of Michael Alvidrez, a manager of single-room-occupancy ("SRO") hotels in Skid Row owned by the Skid Row Housing Trust, since the mid-1970s Los Angeles has chosen to centralize homeless services in Skid Row. See also Edward G. Goetz, Land Use and Homeless Policy in Los Angeles, 16 Int'l. J. Urb. & Regional Res. 540, 543 (1992) (discussing the City's long-standing "policy of concentrating and containing the homeless in the Skid Row area"). The area is now largely comprised of SRO hotels (multi-unit housing for very low income persons typically consisting of a single room with shared bathroom), shelters, and other facilities for the homeless.
Skid Row is a place of desperate poverty, drug use, and crime, where Porta-Potties serve as sleeping quarters and houses of prostitution. Steve Lopez, A Corner Where L.A. Hits Rock Bottom, L.A. Times, Oct. 17, 2005, at A1. Recently, it has been reported that local hospitals and law enforcement agencies from nearby suburban areas have been caught "dumping" homeless individuals in Skid Row upon their release. Cara Mia DiMassa & Richard Winton, Dumping of Homeless Suspected Downtown, L.A. Times, Sept. 23, 2005, at A1. This led Los Angeles Mayor Antonio Villaraigosa to order an investigation into the phenomenon in September 2005. Cara Mia DiMassa & Richard Fausset, Mayor Orders Probe of Skid Row Dumping, L.A. Times, Sept. 27, 2005, at B1. L.A.P.D. Chief William Bratton, insisting that the Department does not target the homeless but only people who violate city ordinances (presumably including the ordinance at issue), has stated:
"If the behavior is aberrant, in the sense that it breaks the law, then there are city ordinances. . . . You arrest them, prosecute them. Put them in jail. And if they do it again, you arrest them, prosecute them, and put them in jail. It's that simple."
Cara Mia DiMassa & Stuart Pfeifer, 2 Strategies on Policing Homeless, L.A. Times, Oct. 6, 2005, at A1 [hereinafter DiMassa, Policing Homeless] (omission in original) (quoting Chief Bratton). This has not always been City policy. The ordinance at issue was adopted in 1968. See L.A., Cal., Ordinance 137,269 (Sept. 11, 1968). In the late 1980s, James K. Hahn, who served as Los Angeles City Attorney from 1985 to 2001 and subsequently as Mayor, refused to prosecute the homeless for sleeping in public unless the City provided them with an alternative to the streets. Frederick M. Muir, No Place Like Home: A Year After Camp Was Closed, Despair Still Reigns on Skid Row, L.A. Times, Sept. 25, 1988, § 2 (Metro), at 1.
For the approximately 11,000-12,000 homeless individuals in Skid Row, space is available in SRO hotels, shelters, and other temporary or transitional housing for only 9000 to 10,000, leaving more than 1000 people unable to find shelter each night. See Mayor's Citizens' Task Force, supra, at 5. In the County as a whole, there are almost 50,000 more homeless people than available beds. See L.A. Homeless Servs. Auth., supra, at 2-14. In 1999, the fair market rent for an SRO room in Los Angeles was $379 per month. L.A. Housing Crisis Task Force, In Short Supply 6 (2000). Yet the monthly welfare stipend for single adults in Los Angeles County is only $221. See L.A. Homeless Servs. Auth., supra, at 2-10. Wait-lists for public housing and for housing assistance vouchers in Los Angeles are three-to ten-years long. See The U.S. Conference of Mayors, A Status Report on Hunger and Homelessness in America's Cities 101, 105 (2002) [hereinafter Homelessness Report];1 L.A. Housing Crisis Task Force, supra, at 7.
The result, in City officials' own words, is that "`[t]he gap between the homeless population needing a shelter bed and the inventory of shelter beds is severely large.'" Homelessness Report, supra, at 80. As Los Angeles's homeless population has grown, see id. at 109 (estimating annualized growth of ten percent in Los Angeles's homeless population in the years up to and including 2003), the availability of low-income housing in Skid Row has shrunk, according to the declaration of Alice Callaghan, director of a Skid Row community center and board member of the Skid Row Housing Trust. According to Callaghan's declaration, at night in Skid Row, SRO hotels, shelters, and other temporary or transitional housing are the only alternatives to sleeping on the street; during the day, two small parks are open to the public. Thus, for many in Skid Row without the resources or luck to obtain shelter, sidewalks are the only place to be.
As will be discussed below, Appellants' declarations demonstrate that they are not on the streets of Skid Row by informed choice. In addition, the Institute for the Study of Homelessness and Poverty reports that homelessness results from mental illness, substance abuse, domestic violence, low-paying jobs, and, most significantly, the chronic lack of affordable housing. Inst. for the Study of Homelessness and Poverty, "Who Is Homeless in Los Angeles?" 3 (2000). It also reports that between 33% and 50% of the homeless in Los Angeles are mentally ill, and 76% percent of homeless adults in 1990 had been employed for some or all of the two years prior to becoming homeless. Id. at 2; see also Grace R. Dyrness et al., Crisis on the Streets: Homeless Women and Children in Los Angeles 14 (2003) (noting that approximately 14% of homeless individuals in Los Angeles are victims of domestic violence).
Against this background, the City asserts the constitutionality of enforcing Los Angeles Municipal Code section 41.18(d) against those involuntarily on the streets during nighttime hours, such as Appellants. It provides:
No person shall sit, lie or sleep in or upon any street, sidewalk or other public way.
The provisions of this subsection shall not apply to persons sitting on the curb portion of any sidewalk or street while attending or viewing any parade permitted under the provisions of Section 103.111 of Article 2, Chapter X of this Code; nor shall the provisions of this subsection supply [sic] to persons sitting upon benches or other seating facilities provided for such purpose by municipal authority by this Code.
L.A., Cal., Mun.Code § 41.18(d) (2005). A violation of section 41.18(d) is punishable by a fine of up to $1000 and/or imprisonment of up to six months. Id. § 11.00(m).
Section 41.18(d) is one of the most restrictive municipal laws regulating public spaces in the United States. The City can secure a conviction under the ordinance against anyone who merely sits, lies, or sleeps in a public way at any time of day. Other cities' ordinances similarly directed at the homeless provide ways to avoid criminalizing the status of homelessness by making an element of the crime some conduct in combination with sitting, lying, or sleeping in a state of homelessness. For example, Las Vegas prohibits standing or lying in a public way only when it obstructs pedestrian or vehicular traffic. See, e.g., Las Vegas, Nev., Mun.Code § 10.47.020 (2005) ("It is unlawful to intentionally obstruct pedestrian or vehicular traffic . . . ."). Others, such as Portland, prohibit "camping" in or upon any public property or public right of way. See, e.g., Portland, Or., Mun.Code §§ 14A.50.020,.030 (2006) (prohibiting obstruction of public sidewalks in a designated area or camping on public property). Still others contain safe harbor provisions such as limiting the hours of enforcement. See, e.g., Seattle, Wash., Mun.Code § 15.48.040 (2005) ("No person shall sit or lie down upon a public sidewalk . . . during the hours between seven (7:00) a.m. and nine (9:00) p.m. in the following zones . . . ."); Tucson, Ariz., Mun.Code § 11-36.2(a) (2005) (same, except prohibition extended to 10:00 p.m.); Houston, Tex., Mun.Code § 40-352(a) (2006) (same, except prohibition extended to 11:00 p.m.). Other cities include as a required element sitting, lying, or sleeping in clearly defined and limited zones. See, e.g., Philadelphia, Pa., Mun.Code § 10-611(1)(b)-(c), (2)(g)-(h) (2005) (prohibiting sitting or lying in certain designated zones only); Reno, Nev., Mun.Code § 8.12.015(b) (2005) (similar); Seattle, Wash., Mun.Code § 15.48.040 (similar). As a result of the expansive reach of section 41.18(d), the extreme lack of available shelter in Los Angeles, and the large homeless population, thousands of people violate the Los Angeles ordinance every day and night, and many are arrested, losing what few possessions they may have.2 Appellants are among them.
Robert Lee Purrie is in his early sixties. He has lived in the Skid Row area for four decades. Purrie sleeps on the streets because he cannot afford a room in an SRO hotel and is often unable to find an open bed in a shelter. Early in the morning of December 5, 2002, Purrie declares that he was sleeping on the sidewalk at Sixth Street and Towne Avenue because he "had nowhere else to sleep." At 5:20 a.m., L.A.P.D. officers cited Purrie for violating section 41.18(d). He could not afford to pay the resulting fine.
Purrie was sleeping in the same location on January 14, 2003, when police officers woke him early in the morning and searched, handcuffed, and arrested him pursuant to a warrant for failing to pay the fine from his earlier citation. The police removed his property from his tent, broke it down, and threw all of his property, including the tent, into the street. The officers also removed the property and tents of other homeless individuals sleeping near Purrie. After spending the night in jail, Purrie was convicted of violating section 41.18(d), given a twelve-month suspended sentence, and ordered to pay $195 in restitution and attorneys' fees. Purrie was also ordered to stay away from the location of his arrest. Upon his release, Purrie returned to the corner where he had been sleeping on the night of his arrest to find that all the belongings he had left behind, including blankets, clothes, cooking utensils, a hygiene kit, and other personal effects, were gone.
Stanley Barger suffered a brain injury in a car accident in 1998 and subsequently lost his Social Security Disability Insurance. His total monthly income consists of food stamps and $221 in welfare payments. According to Barger's declaration, he "want[s] to be off the street" but can only rarely afford shelter. At 5:00 a.m. on December 24, 2002, Barger was sleeping on the sidewalk at Sixth and Towne when L.A.P.D. officers arrested him. Barger was jailed, convicted of violating section 41.18(d), and sentenced to two days time served.
When Thomas Cash was cited for violating section 41.18(d), he had not worked for approximately two years since breaking his foot and losing his job, and had been sleeping on the street or in a Skid Row SRO hotel. Cash suffers from severe kidney problems, which cause swelling of his legs and shortness of breath, making it difficult for him to walk. At approximately noon on January 10, 2003, Cash tired as he walked to the SRO hotel where he was staying. He was resting on a tree stump when L.A.P.D. officers cited him.
Edward Jones's wife, Janet, suffers serious physical and mental afflictions. Edward takes care of her, which limits his ability to find full-time work, though he has held various minimum wage jobs. The Joneses receive $375 per month from the Los Angeles County General Relief program, enabling them to stay in Skid Row SRO hotels for the first two weeks of each month. Because shelters separate men and women, and Janet's disabilities require Edward to care for her, the Joneses are forced to sleep on the streets every month after their General Relief monies run out. At 6:30 a.m. on November 20, 2002, Edward and Janet Jones were sleeping on the sidewalk at the corner of Industrial and Alameda Streets when the L.A.P.D. cited them for violating section 41.18(d).
Patricia and George Vinson, a married couple, were looking for work and a permanent place to live when they were cited for violating section 41.18(d). They use their General Relief payments to stay in motels for part of every month and try to stay in shelters when their money runs out. On the night of December 2, 2002, they missed a bus that would have taken them to a shelter and had to sleep on the sidewalk near the corner of Hope and Washington Streets instead. At 5:30 a.m. the next morning, L.A.P.D. officers cited the Vinsons for violating section 41.18(d).
The record before us includes declarations and supporting documentation from nearly four dozen other homeless individuals living in Skid Row who have been searched, ordered to move, cited, arrested, and/or prosecuted for, and in some cases convicted of, violating section 41.18(d). Many of these declarants lost much or all of their personal property when they were arrested.
On February 19, 2003, Appellants filed a complaint in the United States District Court for the Central District of California pursuant to 42 U.S.C. § 1983. They seek a permanent injunction against the City of Los Angeles and L.A.P.D. Chief William Bratton and Captain Charles Beck (in their official capacities), barring them from enforcing section 41.18(d) in Skid Row between the hours of 9:00 p.m. and 6:30 a.m. Appellants allege that by enforcing section 41.18(d) twenty-four hours a day against persons with nowhere else to sit, lie, or sleep, other than on public streets and sidewalks, the City is criminalizing the status of homelessness in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution, and Article I, sections 7 and 17 of the California Constitution, see Cal. Const. art I, § 7 (guaranteeing due process and equal protection); id. § 17 (prohibiting cruel and unusual punishment). Appellants abandoned their second claim pursuant to 42 U.S.C. § 1983, alleging violations of a Fourteenth Amendment substantive due process right to treatment for chronic illnesses while in police custody, in the district court. On cross-motions for summary judgment, the district court granted judgment in favor of the City. Relying heavily on Joyce v. City and County of San Francisco,
II. Standard of Review
The parties dispute the appropriate standard of review. Appellants argue that the district court's denial of summary judgment should be reviewed de novo, while the City argues that the abuse of discretion standard applies because the district court denied a request for equitable relief. Although we review a district court's summary judgment order granting or denying a permanent injunction for abuse of discretion, Fortyune v. Am. Multi-Cinema, Inc.,
III. Discussion
A. Standing
The City challenges Appellants' standing for the first time on appeal. We nevertheless consider this challenge because the question of standing is jurisdictional and may be raised at any time by the parties, Laub v. U.S. Dep't of Interior,
The City's contention that standing requires Appellants to have been convicted under the ordinance ignores established standing principles. The City also argues Appellants lack standing because, after being arrested, jailed, and losing their belongings, Appellants could theoretically raise a necessity defense if they were prosecuted. This argument is legally, factually, and realistically untenable.3
Article III of the Constitution requires a plaintiff seeking to invoke the jurisdiction of the federal courts to allege an actual case or controversy. To satisfy the case or controversy requirement, the party invoking a court's jurisdiction must "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision." Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc.,
Where the plaintiff seeks to enjoin criminal law enforcement activities against him, standing depends on the plaintiff's ability to avoid engaging in the illegal conduct in the future. See Hodgers-Durgin v. de la Vina,
Appellants seek only prospective injunctive relief, not damages. They do not ask for section 41.18(d) to be declared facially unconstitutional; they seek only to have its enforcement enjoined in a small area of the city during nighttime hours. Appellants have demonstrated both past injuries and a real and immediate threat of future injury: namely, they have been and are likely to be fined, arrested, incarcerated, prosecuted, and/or convicted for involuntarily violating section 41.18(d) at night in Skid Row. These law enforcement actions restrict Appellants' personal liberty, deprive them of property, and cause them to suffer shame and stigma. In the absence of any indication that the enormous gap between the number of available beds and the number of homeless individuals in Los Angeles generally and Skid Row in particular has closed, Appellants are certain to continue sitting, lying, and sleeping in public thoroughfares and, as a result, will suffer direct and irreparable injury from enforcement of section 41.18(d). As L.A.P.D. Chief Bratton has promised, they will be arrested, prosecuted, and put in jail repeatedly, if necessary. See DiMassa, Policing Homeless, supra. Appellants have therefore alleged an actual case or controversy and have standing to bring this suit.
In arguing that Appellants lack standing, the City misrelies upon dicta in Ingraham v. Wright,
Ingraham addressed a claim that the Cruel and Unusual Punishment Clause bars the use of disciplinary corporal punishment in public schools. Id. at 668,
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 criminal and punished as such.
Id. at 667,
Ingraham rests on the distinction between state action inside and "outside the criminal process," id. at 667,
The City and the dissent advance out of context the following dicta from Ingraham to support their contention that a conviction is necessary before one has standing to invoke our jurisdiction: "[the Cruel and Unusual Punishment Clause] was designed to protect those convicted of crimes," id. at 664,
The Clause's first two protections govern the particulars of criminal punishment, "what kind" and "how much," covering only those who have been convicted of a criminal violation and face punitive sanctions. A plaintiff alleging violations of the first or second protections, therefore, has not suffered constitutionally cognizable harm unless he has been convicted. See, e.g., City of Revere v. Mass. Gen. Hosp.,
The Cruel and Unusual Punishment Clause's third protection, however, differs from the first two in that it limits what the state can criminalize, not how it can punish. See Ingraham,
A more restrictive approach to standing, one that made conviction a prerequisite for any type of Cruel and Unusual Punishment Clause challenge, would allow the state to criminalize a protected behavior or condition and cite, arrest, jail, and even prosecute individuals for violations, so long as no conviction resulted. Under this approach, the state could in effect punish individuals in the preconviction stages of the criminal law enforcement process for being or doing things that under the Clause cannot be subject to the criminal process. But the Clause's third protection limits the state's ability to criminalize certain behaviors or conditions, not merely its ability to convict and then punish post conviction.
Accordingly, to bring an as-applied challenge to a criminal statute alleged to transgress the Clause's substantive limits on criminalization, all that is required for standing is some direct injury—for example, a deprivation of property, such as a fine, or a deprivation of liberty, such as an arrest—resulting from the plaintiff's subjection to the criminal process due to violating the statute. Cf. Lyons,
Notwithstanding this well-established Supreme Court authority, the City urges us to follow the Fifth Circuit, which has based its rejection of an Eighth Amendment challenge by homeless persons on the absence of a conviction. See Johnson v. City of Dallas,
Although a conviction is not required to establish standing for prospective relief from enforcement of a criminal law against a status or behavior that may not be criminalized under the Eighth Amendment, here, two of the six Appellants, Purrie and Barger, have in fact been convicted and sentenced for violating section 41.18(d). Documents in the record demonstrate that judgment was pronounced and Barger was sentenced by the Los Angeles County Superior Court to time served on December 26, 2002. Similarly, judgment was pronounced and Purrie was given a twelve-month suspended sentence on January 15, 2003 with the condition that he "stay away from location of arrest."4 If a conviction is constitutionally required, the fact that two of the six plaintiffs were convicted suffices to establish standing for all. See Leonard v. Clark,
The City next argues that Appellants lack standing because they could assert a necessity defense. In support of this argument, the City relies on In re Eichorn,
A criminal defendant may assert a necessity defense if he has committed an offense to prevent an imminent harm that he could not have otherwise prevented. E.g., United States v. Arellano-Rivera,
evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.
People v. Pepper,
It is undisputed, however, that Appellants have been and in the future will probably be fined, arrested, imprisoned, and/or prosecuted, as well as suffer the loss of their personal property, for involuntarily violating section 41.18(d). These preconviction harms, some of which occur immediately upon citation or arrest, suffice to establish standing and are not salved by the potential availability of a necessity defense. The loss of Appellants' possessions when they are arrested and held in custody is particularly injurious because they have so few resources and may find that everything they own has disappeared by the time they return to the street.
Moreover, the practical realities of homelessness make the necessity defense a false promise for those charged with violating section 41.18(d). Homeless individuals, who may suffer from mental illness, substance abuse problems, unemployment, and poverty, are unlikely to have the knowledge or resources to assert a necessity defense to a section 41.18(d) charge, much less to have access to counsel when they are arrested and arraigned. Furthermore, even counseled homeless individuals are unlikely to subject themselves to further jail time and a trial when they can plead guilty in return for a sentence of time served and immediate release. Finally, one must question the policy of arresting, jailing, and prosecuting individuals whom the City Attorney concedes cannot be convicted due to a necessity defense. If there is no offense for which the homeless can be convicted, is the City admitting that all that comes before is merely police harassment of a vulnerable population?
B. The Eighth Amendment Prohibition on Cruel and Unusual Punishment
The district court erred by not engaging in a more thorough analysis of Eighth Amendment jurisprudence under Robinson v. California,
The district court relied exclusively on the analysis of Robinson and Powell by another district court in Joyce v. City and County of San Francisco, in which plaintiffs challenged certain aspects of San Francisco's comprehensive homelessness program on Eighth Amendment grounds.
The Joyce plaintiffs made only the conclusory allegation that there was insufficient shelter, id. at 849; they did not make the strong evidentiary showing of a substantial shortage of shelter Appellants make here. Moreover, the preliminary injunction plaintiffs sought in Joyce was so broad as to enjoin enforcement of prohibitions on camping or lodging in public parks and on "`life-sustaining activities such as sleeping, sitting or remaining in a public place,'" which might also include such antisocial conduct as public urination and aggressive panhandling. Id. at 851 (emphasis added). Reasoning that plaintiffs' requested injunction was too broad and too difficult to enforce, and noting the preliminary nature of its findings based on the record at an early stage in the proceedings, the district court denied the injunction. Id. at 851-53. The Joyce court also concluded that homelessness was not a status protectable under the Eighth Amendment, holding that it was merely a constitutionally noncognizable "condition." Id. at 857-58.
We disagree with the analysis of Robinson and Powell conducted by both the district court in Joyce and the district court in the case at bar. The City could not expressly criminalize the status of homelessness by making it a crime to be homeless without violating the Eighth Amendment, nor can it criminalize acts that are an integral aspect of that status. Because there is substantial and undisputed evidence that the number of homeless persons in Los Angeles far exceeds the number of available shelter beds at all times, including on the nights of their arrest or citation, Los Angeles has encroached upon Appellants' Eighth Amendment protections by criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless. A closer analysis of Robinson and Powell instructs that the involuntariness of the act or condition the City criminalizes is the critical factor delineating a constitutionally cognizable status, and incidental conduct which is integral to and an unavoidable result of that status, from acts or conditions that can be criminalized consistent with the Eighth Amendment.
Our analysis begins with Robinson, which announced limits on what the state can criminalize consistent with the Eighth Amendment. In Robinson, the Supreme Court considered whether a state may convict an individual for violating a statute making it a criminal offense to "`be addicted to the use of narcotics.'"
"[t]o be addicted to the use of narcotics is said to be a status or condition and not an act. It is a continuing offense and differs from most other offenses in the fact that [it] is chronic rather than acute; that it continues after it is complete and subjects the offender to arrest at any time before he reforms. . . . All that the People must show is . . . that while in the City of Los Angeles [Robinson] was addicted to the use of narcotics . . . ."
Id. at 662-63,
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. . . . [I]n the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.
Id. at 666-67,
The Court did not articulate the principles that undergird its holding. At a minimum, Robinson establishes that the state may not criminalize "being"; that is, the state may not punish a person for who he is, independent of anything he has done. See, e.g., Powell,
Six years after its decision in Robinson, the Supreme Court considered the case of Leroy Powell, who had been charged with violating a Texas statute making it a crime to "`get drunk or be found in a state of intoxication in any public place.'" Powell,
In a 4-1-4 decision, the Court affirmed Powell's conviction. The four Justices joining the plurality opinion interpreted Robinson to prohibit only the criminalization of pure status and not to limit the criminalization of conduct. Powell,
In contrast, the four Justices in dissent read Robinson to stand for the proposition that "[c]riminal penalties may not be inflicted on a person for being in a condition he is powerless to change." Id. at 567,
In his separate opinion, Justice White rejected the plurality's proposed status-conduct distinction, finding it similar to "forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion." Id. at 548-49,
Justice White concluded that given the holding in Robinson, "the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or being drunk." Id. at 549,
a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law which bans a single act for which they may not be convicted under the Eighth Amendment—the act of getting drunk.
Id. at 551,
Justice White's Powell opinion also echoes his prior dissent in Robinson. In Robinson, Justice White found no Eighth Amendment violation for two reasons: First, because he did "not consider [Robinson's] conviction to be a punishment for having an illness or for simply being in some status or condition, but rather a conviction for the regular, repeated or habitual use of narcotics immediately prior to his arrest," Robinson,
Justice White and the Powell dissenters shared a common view of the importance of involuntariness to the Eighth Amendment inquiry. They differed only on two issues. First, unlike the dissenters, Justice White believed Powell had not demonstrated that his public drunkenness was involuntary. Compare Powell,
Second, Justice White rejected the dissent's attempt to distinguish conditions from acts for Eighth Amendment purposes. See id. at 550 n. 2,
Notwithstanding these differences, five Justices in Powell understood Robinson to stand for the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one's status or being. See id. at 548, 550 n. 2, 551,
Following Robinson's holding that the state cannot criminalize pure status, and the agreement of five Justices in Powell that the state cannot criminalize certain involuntary conduct, there are two considerations relevant to defining the Cruel and Unusual Punishment Clause's limits on the state's power to criminalize. The first is the distinction between pure status—the state of being—and pure conduct—the act of doing. The second is the distinction between an involuntary act or condition and a voluntary one. Accordingly, in determining whether the state may punish a particular involuntary act or condition, we are guided by Justice White's admonition that "[t]he proper subject of inquiry is whether volitional acts brought about the `condition' and whether those acts are sufficiently proximate to the `condition' for it to be permissible to impose penal sanctions on the `condition.'" Powell,
The Robinson and Powell decisions, read together, compel us to conclude that enforcement of section 41.18(d) at all times and in all places against homeless individuals who are sitting, lying, or sleeping in Los Angeles's Skid Row because they cannot obtain shelter violates the Cruel and Unusual Punishment Clause. As homeless individuals, Appellants are in a chronic state that may have been acquired "innocently or involuntarily." Robinson,
In disputing our holding, the dissent veers off track by attempting to isolate the supposed "criminal conduct" from the status of being involuntarily homeless at night on the streets of Skid Row. Unlike the cases the dissent relies on, which involve failure to carry immigration documents, illegal reentry, and drug dealing, the conduct at issue here is involuntary and inseparable from status—they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping. The cases the dissent cites do not control our reading of Robinson and Powell where, as here, an Eighth Amendment challenge concerns the involuntariness of a criminalized act or condition inseparable from status. See Johnson,
Similarly, applying Robinson and Powell, courts have found statutes criminalizing the status of vagrancy to be unconstitutional. For example, Goldman v. Knecht declared unconstitutional a Colorado statute making it a crime for "`[a]ny person able to work and support himself'" to "`be found loitering or strolling about, frequenting public places, . . . begging or leading an idle, immoral or profligate course of life, or not having any visible means of support.'"
IV. Conclusion
Homelessness is not an innate or immutable characteristic, nor is it a disease, such as drug addiction or alcoholism. But generally one cannot become a drug addict or alcoholic, as those terms are commonly used, without engaging in at least some voluntary acts (taking drugs, drinking alcohol). Similarly, an individual may become homeless based on factors both within and beyond his immediate control, especially in consideration of the composition of the homeless as a group: the mentally ill, addicts, victims of domestic violence, the unemployed, and the unemployable. That Appellants may obtain shelter on some nights and may eventually escape from homelessness does not render their status at the time of arrest any less worthy of protection than a drug addict's or an alcoholic's.
Undisputed evidence in the record establishes that at the time they were cited or arrested, Appellants had no choice other than to be on the streets. Even if Appellants' past volitional acts contributed to their current need to sit, lie, and sleep on public sidewalks at night, those acts are not sufficiently proximate to the conduct at issue here for the imposition of penal sanctions to be permissible. See Powell v. Texas,
Our holding is a limited one. We do not hold that the Eighth Amendment includes a mens rea requirement, or that it prevents the state from criminalizing conduct that is not an unavoidable consequence of being homeless, such as panhandling or obstructing public thoroughfares. Cf. United States v. Black,
We are not confronted here with a facial challenge to a statute, cf. Roulette v. City of Seattle,
We hold only that, just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict, Robinson v. California,
We do not suggest that Los Angeles adopt any particular social policy, plan, or law to care for the homeless. See Johnson v. City of Dallas,
We reverse the award of summary judgment to the City, grant summary judgment to Appellants, and remand to the district court for a determination of injunctive relief consistent with this opinion.
REVERSED AND REMANDED.
Notes:
Notes
The Honorable Edward C. Reed, Jr., Senior United States District Judge for the District of Nevada, sitting by designation
It is unclear on what basis the dissent asserts that this report "does not indicate that Los Angeles was among the cities surveyed," or that it "is the only study in the record." Throughout the report, including on page 96 and on the final page, Los Angeles is named as one of the twenty-five surveyed cities. The record includes more than a half dozen public reports Appellants filed in support of their motion for summary judgment, without objection
During oral argument, the attorney for the City asserted that L.A.P.D. officers leaflet Skid Row the day before making their section 41.18(d) sweeps to warn the homeless, and do not cite or arrest people for violating section 41.18(d) unless there are open beds in homeless shelters at the time of the violations. No evidence in the record supports these assertions
As a practical matter, it is questionable how homeless individuals would either know that they could assert a necessity defense or have the wherewithal to hire an attorney who might so advise them, particularly after being arrested, serving jail time, and losing their belongings. The argument that at trial a homeless individual would have recourse to a necessity defense so as to avoid conviction begs the question why the City arrests homeless individuals during nighttime in the first place, other than out of indifference or meanness. As the Los Angeles City Attorney has publicly stated, "`The tragedy of homelessness is compounded by indifference.'" Anat Rubin,"Jobs, Not Jails," Skid Row Protesters Shout at Politicos, L.A. Daily J., Feb. 22, 2006, at 1 (quoting the City Attorney). Yet the National Coalition for the Homeless recently named Los Angeles one of the twenty "meanest" cities in the United States in its treatment of the homeless. Nat'l Coal. for the Homeless & Nat'l Law Ctr. on Homelessness & Poverty, A Dream Denied: The Criminalization of Homelessness in U.S. Cities 10, 40-41 (2006).
The City belatedly objects to the dispositions attached to the Barger and Purrie declarations on foundational grounds. Having failed to assert its objections before the district court, the City has waived its objections as to the authenticity of the dispositionsSee, e.g., Drummond ex rel. Drummond v. City of Anaheim,
In addition, the City and the dissent claim Appellants lack standing because they have failed to demonstrate that shelter was unavailable on the nights they were arrested or cited for violating section 41.18(d), and therefore cannot establish that they were punished for involuntary conduct. Because Appellants seek only prospective injunctive relief, standing depends on the likelihood of future injury, not the existence of past injury. Nevertheless, undisputed evidence in the record, including several reports directly authored or commissioned by City agencies or task forces, shows that there is a chronic and severe gap between the number of homeless individuals and the number of available beds in Los Angeles. E.g., L.A. Homeless Servs. Auth., supra, at 2-14 (in the County as a whole, there are almost 50,000 more homeless people than available beds). This evidence supports the reasonable inference that shelter is unavailable for thousands of homeless individuals in Los Angeles on any given night, including on the nights in question. Moreover, each of the declarations either expressly state that the declarant was unable to obtain shelter at the time they were cited or arrested, or provide sufficient facts from which a reasonable inference can be drawn that they were unable to do so.
RYMER, J., dissenting:
There is no question that homelessness is a serious problem and the plight of the homeless, a cause for serious concern. Yet this does not give us license to expand the narrow limits that, in a "rare type of case," the Cruel and Unusual Punishment Clause of the Eighth Amendment places on substantive criminal law. The majority sees it differently, concluding that the Eighth Amendment forbids the City of Los Angeles from enforcing an ordinance which makes it unlawful to sit, sleep, or lie on sidewalks. It gets there by cobbling together the views of dissenting and concurring justices, creating a circuit conflict on standing, and overlooking both Supreme Court precedent, and our own, that restrict the substantive component of the Eighth Amendment to crimes not involving an act. I disagree, and therefore dissent, for a number of reasons.
Los Angeles Municipal Code (LAMC) § 41.18(d) does not punish people simply because they are homeless. It targets conduct—sitting, lying or sleeping on city sidewalks—that can be committed by those with homes as well as those without. Although the Supreme Court recognized in Robinson v. California,
Neither the Supreme Court nor any other circuit court of appeals has ever held that conduct derivative of a status may not be criminalized. The majority relies on the dissenting opinions and dicta in the concurring opinion in Powell (which involved a conviction for public drunkenness of an alcoholic who was to some degree compelled to drink), but not even the Powell dissent would go so far as to hold that conduct which is closely related to status may not constitutionally be punished unless the conduct is "a characteristic and involuntary part of the pattern of the [status] as it afflicts" the particular individual.
Nor, until now, has the Supreme Court or any other circuit court of appeals intimated (let alone held) that status plus a condition which exists on account of discretionary action by someone else is the kind of "involuntary" condition that cannot be criminalized. Here, the majority holds that the Eighth Amendment "prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles." Maj. op. at 1138. In other words, the City cannot penalize the status of being homeless plus the condition of being without shelter that exists by virtue of the City's failure to provide sufficient housing on any given night. The ramifications of so holding are quite extraordinary. We do not—and should not—immunize from criminal liability those who commit an act as a result of a condition that the government's failure to provide a benefit has left them in.
Regardless, the challenge should fail even on the majority's view of the law because Jones has not shown that he was accused of being in an involuntary condition which he had no capacity to change or avoid. The attack on LAMC § 41.18(d) is not facial; it is as applied to Jones and those who join him in this suit. Jones's theory (embraced by the majority) is that the City's failure to supply adequate shelter caused the six persons who pursue this action to commit the prohibited act, that is, the act of sleeping, sitting or lying on the streets. However, there is no showing in this case that shelter was unavailable on the night that any of the six was apprehended. This is not a class action; each of the six must have been injured in fact by enforcement of the ordinance. As no one has made that showing, the claimants both lack standing and lose on the merits. If Jones were not on the streets because he couldn't find shelter, his conviction cannot have offended the Constitution no matter how broadly the Eighth Amendment is construed.
Finally, Eighth Amendment protections apply to those who are convicted, not to those who are arrested. Even assuming that at least one of the six homeless persons in this action has been convicted and will be prosecuted again, there is no basis for supposing that he will be convicted again. California law provides a defense to conviction under an ordinance such as Los Angeles's if the homeless person shows that he slept, lay or sat on the streets because of economic forces or inadequate alternatives. See In re Eichorn,
Accordingly, I part company with the majority's expansive construction of the substantive limits on criminality. It exceeds the boundaries set by the Supreme Court on the Robinson limitation, and intrudes into the state's province to determine the scope of criminal responsibility. I would affirm.
* Edward Jones and his wife are homeless. Their monthly general relief check is not sufficient to pay for a hotel room on Skid Row for the entire month. No shelter permits a childless couple to stay together. Jones has been cited, but not arrested or convicted, for sleeping on the streets in violation of LAMC § 41.18(d).
Robert Lee Purrie has tried to find shelter in Skid Row and been told that there are no beds available. He was cited for violating LAMC § 41.18(d) but failed to appear, which apparently led to a warrant being issued for his arrest. He was arrested pursuant to the warrant and also charged with violating the ordinance. Purrie states that he was given a suspended sentence on condition that he stay away from the place he was arrested. There is no record of conviction, or any evidence that Purrie was turned away from a shelter the night he was cited.
Patricia and George Vinson have tried to rent rooms in Skid Row hotels and to get into various shelters, but have been unable to find a facility with space they can afford that will allow them to stay together. When they lack money for a motel room, they take the bus to a shelter in South Los Angeles. Occasionally they miss the bus and are forced to sleep on the street. They were cited on one of these occasions, but not arrested or convicted, for violating LAMC § 41.18(d).
Thomas Cash is homeless and disabled. He was residing in a facility on Skid Row provided through the County's cold-weather voucher program when he was cited for sitting on the sidewalk.
Stanley Barger also is homeless and disabled. He can afford to stay in a hotel for only a few days a month on his general relief allowance; his social security income was cut off when he was arrested for consuming alcohol in violation of his parole terms. He was arrested for sleeping on the street and also on an outstanding warrant. He states he was sentenced to time served, but does not say on which charge. There is no record of conviction.
Jones claims that some 42,000 people are homeless each night in the City of Los Angeles, with approximately 11,000 living in the Skid Row area. The number of homeless persons exceeds the number of available shelter beds. Of the 11,000 on Skid Row, approximately 7,000 sleep in a single-room occupancy facility and 2,000 stay in emergency shelter facilities. On any given night, this leaves 2,000 people without shelter.
Jones seeks to enjoin enforcement of LAMC § 41.18(d) between the hours of 9:00 p.m. and 6:30 a.m. The parties brought cross-motions for summary judgment. The district court rejected Jones's contention that the failure of the City to provide sufficient housing compels the conclusion that homelessness is cognizable as a status. It agreed with Judge Jensen's analysis in Joyce v. City and County of San Francisco,
II
The City asserts for the first time on appeal that the homeless persons who pursue this Eighth Amendment action lack standing because they were never convicted of violating the ordinance. It points to Johnson v. City of Dallas,
III
Jones argues that LAMC § 41.18(d) makes criminal what biology and circumstance make necessary, that is, sitting, lying, and sleeping on the streets. He maintains that the gap between the number of homeless persons in Los Angeles, and the number of available shelter beds, leaves thousands without shelter every night. Jones claims that the situation is particularly acute on Skid Row, where most homeless shelters and services have been centralized. As Jones puts it, so long as there are more homeless people than shelter beds, "the nightly search for shelter will remain a zero-sum game in which many of the homeless, through no fault of their own, will end up breaking the law." By enforcing the ordinance, Jones contends, the City subjects homeless persons to a cycle of citation, arrest, and punishment for the involuntary and harmless conduct of sitting or lying in the street. Accordingly, he seeks to bring the ordinance "in line with less draconian ordinances in other cities" by barring its enforcement in Skid Row during nighttime hours.
Jones relies on Robinson v. California,
is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the "status" of narcotic addiction a criminal offense, for which the offender may be prosecuted "at any time before he reforms." California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.
Id. at 666,
Jones submits that as the City could not expressly criminalize the status of being homeless without offending the Eighth Amendment, it cannot enforce the ordinance when the number of homeless persons exceeds the number of available shelter beds because to do so has the effect of criminalizing homelessness. For this he relies on Pottinger v. City of Miami,
In Powell v. Texas,
Robinson so viewed brings this Court but a very small way into the substantive criminal law. And unless Robinson is so viewed it is difficult to see any limiting principle that would serve to prevent this Court from becoming, under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility, in diverse areas of the criminal law, throughout the country.
Id. at 533,
[t]he entire thrust of Robinson's interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, "involuntary" or "occasioned by a compulsion."
Id. at 533,
Justice White concurred in the judgment. In his view, if it could not be a crime to have an "irresistible compulsion to use narcotics" in Robinson, then the use of narcotics by an addict must be beyond the reach of the criminal law. Id. at 548-49,
The Powell dissent opined that a criminal penalty could not be imposed on a person suffering the disease of chronic alcoholism for a condition — being in a state of intoxication in public — which is a characteristic part of the pattern of his disease. Id. at 559,
Finally, the Court commented on the purpose of the Cruel and Unusual Punishment Clause, and on Robinson, in Ingraham v. Wright,
these decisions recognize that the Cruel and Unusual Punishments Clause 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 criminal and punished as such.
Id. at 667,
Our court has considered whether individuals are being punished on account of status rather than conduct several times. In United States v. Ritter,
In United States v. Kidder,
And in United States v. Ayala,
These cases indicate to me that application of LAMC § 41.18(d) to Jones's situation is not the "rare type of case" for which the Cruel and Unusual Punishment Clause limits what may be criminalized. Robinson does not apply to criminalization of conduct. Its rationale is that the California statute penalizing addiction failed to criminalize conduct, and this failure is what made it unconstitutional.
Also, in the rare case exemplified by Robinson, the status being criminalized is an internal affliction, potentially an innocent or involuntary one. See Robinson,
In further contrast to Robinson, where the Court noted that California through its statute "said that a person can be continuously guilty of this offense [being addicted to the use of narcotics], whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there,"
Wholly apart from whatever substantive limits the Eighth Amendment may impose on what can be made criminal and punished as such, the Cruel and Unusual Punishment Clause places no limits on the state's ability to arrest. Jones relies heavily on "mass arrests" of homeless people on Skid Row. However, the Eighth Amendment's "protections d[o] not attach until after conviction and sentence." Graham,
In any event, there is a difference between the protection afforded by the Eighth Amendment, and protection afforded by the Fourteenth. Protection against deprivations of life, liberty and property without due process is, of course, the role of the Fourteenth Amendment, not the Eighth. The majority's analysis of the substantive component of the Eighth Amendment blurs the two. However, the Eighth Amendment does not afford due process protection when a Fourteenth Amendment claim proves unavailing. See Bell v. Wolfish,
I do not question the power of the State to remove a helplessly intoxicated person from a public street, although against his will, and to hold him until he has regained his powers. The person's own safety and the public interest require this much. A statute such as the one challenged in this case is constitutional insofar as it authorizes a police officer to arrest any seriously intoxicated person when he is encountered in a public place. Whether such a person may be charged and convicted for violating the statute will depend upon whether he is entitled to the protection of the Eighth Amendment.
Powell,
Not only has Jones produced no evidence of present or past Eighth Amendment violations, he has failed to show any likelihood of future violations.5 Since 1998, California has recognized a necessity-due-to-homelessness defense to ordinances such as LAMC § 41.18(d). See Eichorn,
As the Eighth Amendment does not forbid arrests, the injunction sought by Jones extends beyond what would be necessary to provide complete relief even if convictions under the ordinance were unconstitutional. An injunction "should be no more burdensome to the defendant than [is] necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki,
As the majority's opinion seems to me contrary to the Supreme Court's instruction to apply Robinson sparingly, and instead applies it expansively, I dissent. I believe the district court correctly concluded that the substantive limits on what can be made criminal and punished as such do not extend to an ordinance that prohibits the acts of sleeping, sitting or lying on City streets. Accordingly, I would affirm.
Notes:
It would appear that at least Purrie and Barger raise a triable issue that they were convicted of violating LAMC § 41.18(d) and fear conviction in the future. While this might satisfy the Fifth Circuit'sJohnson test, it does not necessarily save their standing to the extent they challenge the ordinance based on being convicted for the involuntary "condition" of being on the streets without available shelter. This is because there is no evidence that shelter was unavailable when they committed the underlying offense of sitting, sleeping or lying on City sidewalks.
In this connection, we noted that "[t]he proper procedure to raise this sort of claim would have been for Kidder to have pleaded not guilty and then to challenge the constitutionality of the [statute]. Having pleaded guilty, however, Kidder may not now claim that his actions were really involuntary and thus not constitutionally susceptible to punishment."Kidder,
Neither of the two 1969 district court opinions cited by the majority, maj. op. at 1137, in support of the proposition that the Eighth Amendment forbids criminalizing conduct derivative of status,Goldman v. Knecht,
This is the only study in the record (others referred to by the majority are not), and it does not indicate that Los Angeles was among the cities surveyed. However, there is no reason to believe that the statistics aren't applicable to Los Angeles as wellSee, e.g., Daniel Flaming, et al., Homeless in LA: Final Research Report for the 10-Year Plan to End Homelessness in Los Angeles County at 72 (Sept.2004) (finding that in a given year in Los Angeles less than ten percent of the homeless population remained homeless for more than six months), available at http://www.bringlahome.org/docs/HILA—Final.PDF. (This study is not part of the record, either.)
This, too, calls into question the plaintiffs' standingSee Thomas v. Anchorage Equal Rights Comm'n,