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Martin v. City of Boise

United States Court of Appeals, Ninth Circuit

April 1, 2019

Robert Martin; Lawrence Lee Smith; Robert Anderson; Janet F. Bell; Pamela S. Hawkes; and Basil E. Humphrey, Plaintiffs-Appellants,
v.
City of Boise, Defendant-Appellee.

          Argued and Submitted July 13, 2017 Portland, Oregon

          Appeal from the United States District Court for the District of Idaho D.C. No. 1:09-cv-00540-REB Ronald E. Bush, Chief Magistrate Judge, Presiding

          Michael E. Bern (argued) and Kimberly Leefatt, Latham & Watkins LLP, Washington, D.C.; Howard A. Belodoff, Idaho Legal Aid Services Inc., Boise, Idaho; Eric Tars, National Law Center on Homelessness & Poverty, Washington, D.C.; Plaintiffs-Appellants.

          Brady J. Hall (argued), Michael W. Moore, and Steven R. Kraft, Moore Elia Kraft & Hall LLP, Boise, Idaho; Scott B. Muir, Deputy City Attorney; Robert B. Luce, City Attorney; City Attorney's Office, Boise, Idaho; for Defendant-Appellee.

          Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.

         ORDER AND AMENDED OPINION

         Order; Concurrence in Order by Judge Berzon; Dissent to Order by Judge Milan D. Smith, Jr.; Dissent to Order by Judge Bennett; Opinion by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Owens

         SUMMARY[*]

         Civil Rights

         The panel amended its opinion filed September 4, 2018, and reported at 902 F.3d 1031, denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the court, and ordered that no further petitions shall be entertained.

         In the amended opinion, the panel affirmed in part and reversed in part the district court's summary judgment in favor of the City of Boise in an action brought by six current or formerly homeless City of Boise residents who alleged that their citations under the City's Camping and Disorderly Conduct Ordinances violated the Eighth Amendment's prohibition on cruel and unusual punishment.

         Plaintiffs sought damages for the alleged violations under 42 U.S.C. § 1983. Two plaintiffs also sought prospective declaratory and injunctive relief precluding future enforcement of the ordinances. In 2014, after this litigation began, the ordinances were amended to prohibit their enforcement against any homeless person on public property on any night when no shelter had an available overnight space.

         The panel first held that two plaintiffs had standing to pursue prospective relief because they demonstrated a genuine issue of material fact as to whether they faced a credible risk of prosecution on a night when they had been denied access to the City's shelters. The panel noted that although the 2014 amendment precluded the City from enforcing the ordinances when shelters were full, individuals could still be turned away for reasons other than shelter capacity, such as for exceeding the shelter's stay limits, or for failing to take part in a shelter's mandatory religious programs.

         The panel held that although the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny precluded most - but not all - of the plaintiffs' requests for retrospective relief, the doctrine had no application to plaintiffs' request for an injunction enjoining prospective enforcement of the ordinances.

         Turning to the merits, the panel held that the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. The panel held that, 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.

         Concurring in part and dissenting in part, Judge Owens disagreed with the majority's opinion that Heck v. Humphrey did not bar plaintiffs' claim for declaratory and injunctive relief. Judge Owens stated that a declaration that the city ordinances are unconstitutional and an injunction against their future enforcement would necessarily demonstrate the invalidity of plaintiffs' prior convictions. Judge Owens otherwise joined the majority in full.

         Concurring in the denial of rehearing en banc, Judge Berzon stated that on the merits, the panel's opinion was limited and held only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment. Judge Berzon further stated that a photograph featured in Judge M. Smith's dissent from the denial of rehearing en banc, depicting tents on a Los Angeles public sidewalk, was not part of the record, was unrelated, predated the panel's decision and did not serve to illustrate a concrete effect of the panel's holding. Judge Berzon stated that what the pre-Martin photograph did demonstrate was that the ordinances criminalizing sleeping in public places were never a viable solution to the homelessness problem.

         Dissenting from the denial of rehearing en banc, Judge M. Smith, joined by Judges Callahan, Bea, Ikuta, Bennett and R. Nelson, stated that the panel severely misconstrued three areas of binding Supreme Court precedent, and that the panel's opinion created several splits with other appellate courts. Judge M. Smith further stated that the panel's holding has already begun wreaking havoc on local governments, residents, and businesses throughout the circuit. Judge M. Smith stated that the panel's reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination, and that the panel's opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.

         Dissenting from the denial of rehearing en banc, Judge Bennett, joined by Judges Bea, Ikuta, R. Nelson, and joined by Judge M. Smith as to Part II, stated that the panel's decision, which allows pre-conviction Eighth Amendment challenges, is wholly inconsistent with the text and tradition of the Eighth Amendment.

         ORDER

         The Opinion filed September 4, 2018, and reported at 902 F.3d 1031, is hereby amended. The amended opinion will be filed concurrently with this order.

         The panel has unanimously voted to deny the petition for panel rehearing. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are DENIED.

         Future petitions for rehearing or rehearing en banc will not be entertained in this case.

          BERZON, Circuit Judge, concurring in the denial of rehearing en banc:

         I strongly disfavor this circuit's innovation in en banc procedure-ubiquitous dissents in the denial of rehearing en banc, sometimes accompanied by concurrences in the denial of rehearing en banc. As I have previously explained, dissents in the denial of rehearing en banc, in particular, often engage in a "distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority-often a decisive majority-of the active members of the court . . . perceived no error." Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Calif. L. Rev. 1479 (2012). Often times, the dramatic tone of these dissents leads them to read more like petitions for writ of certiorari on steroids, rather than reasoned judicial opinions.

         Despite my distaste for these separate writings, I have, on occasion, written concurrences in the denial of rehearing en banc. On those rare occasions, I have addressed arguments raised for the first time during the en banc process, corrected misrepresentations, or highlighted important facets of the case that had yet to be discussed.

         This case serves as one of the few occasions in which I feel compelled to write a brief concurrence. I will not address the dissents' challenges to the Heck v. Humphrey, 512 U.S. 477 (1994), and Eighth Amendment rulings of Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), as the opinion sufficiently rebuts those erroneous arguments. I write only to raise two points.

         First, the City of Boise did not initially seek en banc reconsideration of the Eighth Amendment holding. When this court solicited the parties' positions as to whether the Eighth Amendment holding merits en banc review, the City's initial submission, before mildly supporting en banc reconsideration, was that the opinion is quite "narrow" and its "interpretation of the [C]onstitution raises little actual conflict with Boise's Ordinances or [their] enforcement." And the City noted that it viewed prosecution of homeless individuals for sleeping outside as a "last resort," not as a principal weapon in reducing homelessness and its impact on the City.

          The City is quite right about the limited nature of the opinion. On the merits, the opinion holds only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment. Martin, 902 F.3d at 1035. Nothing in the opinion reaches beyond criminalizing the biologically essential need to sleep when there is no available shelter.

         Second, Judge M. Smith's dissent features an unattributed color photograph of "a Los Angeles public sidewalk." The photograph depicts several tents lining a street and is presumably designed to demonstrate the purported negative impact of Martin. But the photograph fails to fulfill its intended purpose for several reasons.

         For starters, the picture is not in the record of this case and is thus inappropriately included in the dissent. It is not the practice of this circuit to include outside-the-record photographs in judicial opinions, especially when such photographs are entirely unrelated to the case. And in this instance, the photograph is entirely unrelated. It depicts a sidewalk in Los Angeles, not a location in the City of Boise, the actual municipality at issue. Nor can the photograph be said to illuminate the impact of Martin within this circuit, as it predates our decision and was likely taken in 2017.[1]

         But even putting aside the use of a pre-Martin, outside-the-record photograph from another municipality, the photograph does not serve to illustrate a concrete effect of Martin's holding. The opinion clearly states that it is not outlawing ordinances "barring the obstruction of public rights of way or the erection of certain structures," such as tents, id. at 1048 n.8, and that the holding "in no way dictate[s] to the City that it must 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 1048 (quoting Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006)).

         What the pre-Martin photograph does demonstrate is that the ordinances criminalizing sleeping in public places were never a viable solution to the homelessness problem. People with no place to live will sleep outside if they have no alternative. Taking them to jail for a few days is both unconstitutional, for the reasons discussed in the opinion, and, in all likelihood, pointless.

         The distressing homelessness problem-distressing to the people with nowhere to live as well as to the rest of society-has grown into a crisis for many reasons, among them the cost of housing, the drying up of affordable care for people with mental illness, and the failure to provide adequate treatment for drug addiction. See, e.g., U.S. Interagency Council on Homelessness, Homelessness in America: Focus on Individual Adults 5-8 (2018), https://www.usich.gov/res ources/?uploads/asset_library/HIA_Individual_Adults.pdf. The crisis continued to burgeon while ordinances forbidding sleeping in public were on the books and sometimes enforced. There is no reason to believe that it has grown, and is likely to grow larger, because Martin held it unconstitutional to criminalize simply sleeping somewhere in public if one has nowhere else to do so.

         For the foregoing reasons, I concur in the denial of rehearing en banc.

          M. SMITH, Circuit Judge, with whom CALLAHAN, BEA, IKUTA, BENNETT, and R. NELSON, Circuit Judges, join, dissenting from the denial of rehearing en banc:

         In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit. Under the panel's decision, local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel's reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination. Perhaps most unfortunately, the panel's opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.[1]

         I respectfully dissent from our court's refusal to correct this holding by rehearing the case en banc.

         I.

         The most harmful aspect of the panel's opinion is its misreading of Eighth Amendment precedent. My colleagues cobble together disparate portions of a fragmented Supreme Court opinion to hold that "an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them." Martin v. City of Boise, 902 F.3d 1031, 1035 (9th Cir. 2018). That holding is legally and practically ill-conceived, and conflicts with the reasoning of every other appellate court[2] that has considered the issue.

         A.

         The panel struggles to paint its holding as a faithful interpretation of the Supreme Court's fragmented opinion in Powell v. Texas, 392 U.S. 514 (1968). It fails.

         To understand Powell, we must begin with the Court's decision in Robinson v. California, 370 U.S. 660 (1962). There, the Court addressed a statute that made it a "criminal offense for a person to 'be addicted to the use of narcotics.'" Robinson, 370 U.S. at 660 (quoting Cal. Health & Safety Code § 11721). The statute allowed defendants to be convicted so long as they were drug addicts, regardless of whether they actually used or possessed drugs. Id. at 665. The Court struck down the statute under the Eighth Amendment, reasoning that because "narcotic addiction is an illness . . . which may be contracted innocently or involuntarily . . . a state law which imprisons a person thus afflicted as criminal, even though he has never touched any narcotic drug" violates the Eighth Amendment. Id. at 667.

         A few years later, in Powell, the Court addressed the scope of its holding in Robinson. Powell concerned the constitutionality of a Texas law that criminalized public drunkenness. Powell, 392 U.S. at 516. As the panel's opinion acknowledges, there was no majority in Powell. The four Justices in the plurality interpreted the decision in Robinson as standing for the limited proposition that the government could not criminalize one's status. Id. at 534. They held that because the Texas statute criminalized conduct rather than alcoholism, the law was constitutional. Powell, 392 U.S. at 532.

         The four dissenting Justices in Powell read Robinson more broadly: They believed that "criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change." Id. at 567 (Fortas, J., dissenting). Although the statute in Powell differed from that in Robinson by covering involuntary conduct, the dissent found the same constitutional defect present in both cases. Id. at 567-68.

         Justice White concurred in the judgment. He upheld the defendant's conviction because Powell had not made a showing that he was unable to stay off the streets on the night he was arrested. Id. at 552-53 (White, J., concurring in the result). He wrote that it was "unnecessary to pursue at this point the further definition of the circumstances or the state of intoxication which might bar conviction of a chronic alcoholic for being drunk in a public place." Id. at 553.

         The panel contends that because Justice White concurred in the judgment alone, the views of the dissenting Justices constitute the holding of Powell. Martin, 902 F.3d at 1048. That tenuous reasoning-which metamorphosizes the Powell dissent into the majority opinion-defies logic.

         Because Powell was a 4-1-4 decision, the Supreme Court's decision in Marks v. United States guides our analysis. 430 U.S. 188 (1977). There, the Court held 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.'" Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion)) (emphasis added). When Marks is applied to Powell, the holding is clear: The defendant's conviction was constitutional because it involved the commission of an act. Nothing more, nothing less.

         This is hardly a radical proposition. I am not alone in recognizing that "there is definitely no Supreme Court holding" prohibiting the criminalization of involuntary conduct. United States v. Moore, 486 F.2d 1139, 1150 (D.C. Cir. 1973) (en banc). Indeed, in the years since Powell was decided, courts-including our own-have routinely upheld state laws that criminalized acts that were allegedly compelled or involuntary. See, e.g., United States v. Stenson, 475 Fed.Appx. 630, 631 (7th Cir. 2012) (holding that it was constitutional for the defendant to be punished for violating the terms of his parole by consuming alcohol because he "was not punished for his status as an alcoholic but for his conduct"); Joshua v. Adams, 231 Fed.Appx. 592, 594 (9th Cir. 2007) ("Joshua also contends that the state court ignored his mental illness [schizophrenia], which rendered him unable to control his behavior, and his sentence was actually a penalty for his illness . . . . This contention is without merit because, in contrast to Robinson, where a statute specifically criminalized addiction, Joshua was convicted of a criminal offense separate and distinct from his 'status' as a schizophrenic."); United States v. Benefield, 889 F.2d 1061, 1064 (11th Cir. 1989) ("The considerations that make any incarceration unconstitutional when a statute punishes a defendant for his status are not applicable when the government seeks to punish a person's actions.").[3]

         To be sure, Marks is controversial. Last term, the Court agreed to consider whether to abandon the rule Marks established (but ultimately resolved the case on other grounds and found it "unnecessary to consider . . . the proper application of Marks"). Hughes v. United States, 138 S.Ct. 1765, 1772 (2018). At oral argument, the Justices criticized the logical subset rule established by Marks for elevating the outlier views of concurring Justices to precedential status.[4] The Court also acknowledged that lower courts have inconsistently interpreted the holdings of fractured decisions under Marks.[5]

         Those criticisms, however, were based on the assumption that Marks means what it says and says what it means: Only the views of the Justices concurring in the judgment may be considered in construing the Court's holding. Marks, 430 U.S. at 193. The Justices did not even think to consider that Marks allows dissenting Justices to create the Court's holding. As a Marks scholar has observed, such a method of vote counting "would paradoxically create a precedent that contradicted the judgment in that very case."[6] And yet the panel's opinion flouts that common sense rule to extract from Powell a holding that does not exist.

         What the panel really does is engage in a predictive model of precedent. The panel opinion implies that if a case like Powell were to arise again, a majority of the Court would hold that the criminalization of involuntary conduct violates the Eighth Amendment. Utilizing such reasoning, the panel borrows the Justices' robes and adopts that holding on their behalf.

         But the Court has repeatedly discouraged us from making such predictions when construing precedent. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). And, for good reason. Predictions about how Justices will rule rest on unwarranted speculation about what goes on in their minds. Such amateur fortunetelling also precludes us from considering new insights on the issues-difficult as they may be in the case of 4-1-4 decisions like Powell-that have arisen since the Court's fragmented opinion. See E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977) (noting "the wisdom of allowing difficult issues to mature through full consideration by the courts of appeals").

         In short, predictions about how the Justices will rule ought not to create precedent. The panel's Eighth Amendment holding lacks any support in Robinson or Powell.

         B.

         Our panel's opinion also conflicts with the reasoning underlying the decisions of other appellate courts.

         The California Supreme Court, in Tobe v. City of Santa Ana, rejected the plaintiffs' Eighth Amendment challenge to a city ordinance that banned public camping. 892 P.2d 1145 (1995). The court reached that conclusion despite evidence that, on any given night, at least 2, 500 homeless persons in the city did not have shelter beds available to them. Id. at 1152. The court sensibly reasoned that because Powell was a fragmented opinion, it did not create precedent on "the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, 'involuntary' or 'occasioned by a compulsion.'" Id. at 1166 (quoting Powell, 392 U.S. at 533). Our panel-bound by the same Supreme Court precedent-invalidates identical California ordinances previously upheld by the California Supreme Court. Both courts cannot be correct.

         The California Supreme Court acknowledged that homelessness is a serious societal problem. It explained, however, that:

Many of those issues are the result of legislative policy decisions. The arguments of many amici curiae regarding the apparently intractable problem of homelessness and the impact of the Santa Ana ordinance on various groups of homeless persons (e.g., teenagers, families with children, and the mentally ill) should be addressed to the Legislature and the Orange County Board of Supervisors, not the judiciary. Neither the criminal justice system nor the judiciary is equipped to resolve chronic social problems, but criminalizing conduct that is a product of those problems is not for that reason constitutionally impermissible.

Id. at 1157 n.12. By creating new constitutional rights out of whole cloth, my well-meaning, but unelected, colleagues improperly inject themselves into the role of public policymaking.[7]

         The reasoning of our panel decision also conflicts with precedents of the Fourth and Eleventh Circuits. In Manning v. Caldwell, the Fourth Circuit held that a Virginia statute that criminalized the possession of alcohol did not violate the Eighth Amendment when it punished the involuntary actions of homeless alcoholics. 900 F.3d 139, 153 (4th Cir. 2018), reh'g en banc granted 741 Fed.Appx. 937 (4th Cir. 2018).[8]The court rejected the argument that Justice White's opinion in Powell "requires this court to hold that Virginia's statutory scheme imposes cruel and unusual punishment because it criminalizes [plaintiffs'] status as homeless alcoholics." Id. at 145. The court found that the statute passed constitutional muster because "it is the act of possessing alcohol-not the status of being an alcoholic-that gives rise to criminal sanctions." Id. at 147.

         Boise's Ordinances at issue in this case are no different: They do not criminalize the status of homelessness, but only the act of camping on public land or occupying public places without permission. Martin, 902 F.3d at 1035. The Fourth Circuit correctly recognized that these kinds of laws do not run afoul of Robinson and Powell.

         The Eleventh Circuit has agreed. In Joel v. City of Orlando, the court held that a city ordinance prohibiting sleeping on public property was constitutional. 232 F.3d 1353, 1362 (11th Cir. 2000). The court rejected the plaintiffs' Eighth Amendment challenge because the ordinance "targets conduct, and does not provide criminal punishment based on a person's status." Id. The court prudently concluded that "[t]he City is constitutionally allowed to regulate where 'camping' occurs." Id.

         We ought to have adopted the sound reasoning of these other courts. By holding that Boise's enforcement of its Ordinances violates the Eighth Amendment, our panel has needlessly created a split in authority on this straightforward issue.

         C.

         One would think our panel's legally incorrect decision would at least foster the common good. Nothing could be further from the truth. The panel's decision generates dire practical consequences for the hundreds of local governments within our jurisdiction, and for the millions of people that reside therein.

         The panel opinion masquerades its decision as a narrow one by representing that it "in no way dictate[s] to the City that it must 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." Martin, 902 F.3d at 1048 (quoting Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006)).

         That excerpt, however, glosses over the decision's actual holding: "We hold only that . . . as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property." Id. Such a holding leaves cities with a Hobson's choice: They must either undertake an overwhelming financial responsibility to provide housing for or count the number of homeless individuals within their jurisdiction every night, or abandon enforcement of a host of laws regulating public health and safety. The Constitution has no such requirement.

         * * *

         Under the panel's decision, local governments can enforce certain of their public health and safety laws only when homeless individuals have the choice to sleep indoors. That inevitably leads to the question of how local officials ought to know whether that option exists.

         The number of homeless individuals within a municipality on any given night is not automatically reported and updated in real time. Instead, volunteers or government employees must painstakingly tally the number of homeless individuals block by block, alley by alley, doorway by doorway. Given the daily fluctuations in the homeless population, the panel's opinion would require this labor-intensive task be done every single day. Yet in massive cities such as Los Angeles, that is simply impossible. Even when thousands of volunteers devote dozens of hours to such "a herculean task," it takes three days to finish counting-and even then "not everybody really gets counted."[9] Lest one think Los Angeles is unique, our circuit is home to many of the largest homeless populations nationwide.[10]

         If cities do manage to cobble together the resources for such a system, what happens if officials (much less volunteers) miss a homeless individual during their daily count and police issue citations under the false impression that the number of shelter beds exceeds the number of homeless people that night? According to the panel's opinion, that city has violated the Eighth Amendment, thereby potentially leading to lawsuits for significant monetary damages and other relief.

         And what if local governments (understandably) lack the resources necessary for such a monumental task?[11] They have no choice but to stop enforcing laws that prohibit public sleeping and camping.[12] Accordingly, our panel's decision effectively allows homeless individuals to sleep and live wherever they wish on most public property. Without an absolute confidence that they can house every homeless individual, city officials will be powerless to assist residents lodging valid complaints about the health and safety of their neighborhoods.[13]

         As if the panel's actual holding wasn't concerning enough, the logic of the panel's opinion reaches even further in scope. The opinion reasons that because "resisting the need to . . . engage in [] life-sustaining activities is impossible," punishing the homeless for engaging in those actions in public violates the Eighth Amendment. Martin, 902 F.3d at 1048. What else is a life-sustaining activity? Surely bodily functions. By holding that the Eighth Amendment proscribes the criminalization of involuntary conduct, the panel's decision will inevitably result in the striking down of laws that prohibit public defecation and urination.[14] The panel's reasoning also casts doubt on public safety laws restricting drug paraphernalia, for the use of hypodermic needles and the like is no less involuntary for the homeless suffering from the scourge of addiction than is their sleeping in public.

         It is a timeless adage that states have a "universally acknowledged power and duty to enact and enforce all such laws . . . as may rightly be deemed necessary or expedient for the safety, health, morals, comfort and welfare of its people." Knoxville Iron Co. v. Harbison, 183 U.S. 13, 20(1901) (internal quotations omitted). I fear that the panel's decision will prohibit local governments from fulfilling their duty to enforce an array of public health and safety laws. Halting enforcement of such laws will potentially wreak havoc on our communities.[15] As we have already begun to witness, our neighborhoods will soon feature "[t]ents . . . equipped with mini ...


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