In Martin v. City of Boise, published September 4, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant city in an action brought by homeless individuals who had been convicted of or cited for violating the city's camping or disorderly conduct ordinances by sleeping outside on nights when they had no alternative shelter available. The district court ruled that Heck v. Humphrey barred the plaintiffs' suits for retrospective relief, because none had appealed their convictions or raised the Eighth Amendment as a defense in their prosecutions. It further ruled that the two plaintiffs who had not been convicted of their citations lacked standing to pursue prospective relief, because the city had amended its ordinances to permit sleeping outside when the homeless shelters in the city self-reported that they were full.
The 9th Circuit affirmed the Heck ruling concerning retrospective relief as to all plaintiffs except the two who were not convicted. The majority held, however, that Heck did not bar prospective relief. It also rejected the standing holding, since the shelters only had to self-report that they were full, and that self-reporting was not reliable. On the merits, the 9th Circuit followed its earlier ruling in Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), which was vacated due to a settlement of the underlying matter. It held that the ordinances, to the extent they barred sleeping outside for those who had no alternative shelter, violated the Cruel and Unusual Punishments clause of the Eighth Amendment by criminalizing conduct that should not be criminalized. The clause imposes substantive limitations on what may be made criminal and punished as such. For the rare Eighth Amendment challenges to the state's power to criminalize particular behavior or status, the plaintiff need prove only prosecution, not conviction. Just as the state may not criminalize being homeless, it may not criminalize conduct that is an unavoidable consequence of being homeless. As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. That does not prevent the government from imposing time and place restrictions, or apply to those who choose not to take advantage of available public shelters.
A dissenting judge objected that Heck v. Humphrey, when it applied, should preclude both restrospective and prospective relief.
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