Case 1:09-cv-00540-REB Document 1 Filed 10/22/09 Page 1 of 24

Howard A. Belodoff, ISB # 2290
IDAHO LEGAL AID SERVICES, INC. 310 N. 5th Street
Boise, ID 83702 (208) 336-8980│Phone (208) 342-2561│Fax

Tulin Ozdeger, # 476548 (DC) Catherine Bendor, # 442437 (DC) The National Law Center on Homelessness & Poverty 1411 K Street, Suite 1400 Washington, DC 20005 (202) 638-2535│Phone (202) 628-2737│Fax

Marguerite M. Sullivan, # 497894 (DC) Kristi N. O’Malley, # 498584 (DC) Heather Maria Johnson, # 986281 (DC) Latham & Watkins LLP 555 Eleventh Street, Suite 1000 Washington, DC 20004-1304 (202) 637-2200│Phone (202) 637-2201│Fax

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF IDAHO

_________________________________________

) Case No.

JANET F. BELL, BRIAN S. CARSON,

)

CRAIG FOX, ROBERT MARTIN, LAWRENCE )

LEE SMITH, ROBERT ANDERSON,

) COMPLAINT FOR INJUNCTIVE

and PAMELA S. HAWKES,

) AND DECLARATORY RELIEF,

) AND MONETARY DAMAGES

Plaintiffs,

)

) Eighth and Fourteenth Amendments;

v.

) 42 U.S.C. § 1983; Idaho Constitution,

) Art. 1 §§ 2, 6, 13

CITY OF BOISE; BOISE POLICE

)

DEPARTMENT; and MICHAEL MASTERSON, )

in his official capacity as Chief of Police,

)

)

Defendants.

)

_________________________________________ )

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COME NOW the Plaintiffs Janet F. Bell, Brian S. Carson, Craig Fox, Robert Martin, Lawrence Lee Smith, Robert Anderson, and Pamela S. Hawkes, (hereinafter “Plaintiffs”), and for a cause of action against the City of Boise, the Boise Police Department, and Chief of Police Michael Masterson (hereinafter “Defendants”), state and allege as follows: PRELIMINARY STATEMENT
1. In Boise, Idaho, anywhere from 2,000 to 4,500 people are homeless on any given night, while area shelters only have beds for approximately 300 and overflow or cold-weather space for approximately 400 more to sleep on mats on the floor. With the recent economic downturn, the homeless population includes an increasing number of people who have become homeless for the first time, yet shelters are already over capacity. Shelters in Boise place people on mats in every available floor space when they run out of beds and still do not have enough room to meet the growing need.
2. Those individuals who are not fortunate enough to find a spot in the shelters have no choice but to sleep in the public places of Boise where they face the constant threat of violating laws that prohibit “camping” or sleeping in public. Boise police officers routinely issue camping citations to homeless residents for sleeping, sitting, or talking with friends in public places – activities non-homeless residents have the freedom to engage in without fear of police interference. Recently, Boise police officers have begun issuing disorderly conduct citations to homeless residents merely for sleeping in public. Camping and disorderly conduct citations lead to convictions and jail time, which make it more difficult for Boise’s homeless residents to obtain and keep employment and long-term housing. Thus, they continue to sleep in public places despite the constant fear of citation.
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3. This is an action brought by homeless Boise residents who received convictions, citations, or threats of citations for violations of Boise Municipal Code § 9-10-02, which prohibits camping on streets, in parks, or in public places at any time, and/or § 6-01-05(A), which prohibits sleeping in public as “disorderly conduct.” The Defendants have used these laws to cite and arrest individuals who cannot avoid violating these laws because they are homeless. In effect, Defendants have “criminalized” homelessness. As applied to Plaintiffs, this law violates the requirements of the United States and Idaho constitutions.
4. Plaintiffs bring this action for declaratory and injunctive relief and monetary damages pursuant to 42 U.S.C. § 1983. Defendants, under color of state law, have on an ongoing basis violated Plaintiffs’ rights under the Eighth and Fourteenth Amendments to the United States Constitution and analogous provisions of the Idaho Constitution. Plaintiffs seek this relief to enjoin Defendants from enforcing Boise Municipal Code §§ 9-10-02 and 6-0105(A) for sleeping or lying down in public. Plaintiffs also seek damages for violations of the Eighth and Fourteenth Amendments as a result of the enforcement of the ordinances.
JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3)
and (4), and 1367. Plaintiffs bring this action under 42 U.S.C. § 1983 to vindicate rights established by the Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs also seek relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Plaintiffs’ state constitutional law claims arise from the same occurrences as their federal constitutional claims and are within the Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
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6. Venue in this action is proper in the District of Idaho under 28 U.S.C. § 1391(b), as the Defendants are located in the District of Idaho and all the events and/or omissions giving rise to the claims complained of herein have occurred or will occur in the District.
PARTIES A. Plaintiffs
7. Plaintiff JANET F. BELL has resided in Boise since April 13, 2007, and for most of that time was without shelter. Bell suffers from debilitating mental and physical conditions that limit her ability to consistently and reliably perform work, including Bipolar Disorder, PostTraumatic Stress Disorder, an anti-social disorder, a learning disability, deterioration of the spine, hepatitis B and C, cardiac problems, anemia, and chronic and recurring pneumonia. Because she has difficulty maintaining a traditional job, Bell has spent most of her life traveling and working short-term jobs to earn an income. Although space was occasionally available at the Boise Rescue Mission’s City Lights Home for Women and Children, Bell could not stay there because the Boise Rescue Mission’s religious philosophy and activities requirements conflict with her own religious beliefs and because the Boise Rescue Mission limits the length of stay for persons who do not enroll in their religious programming. Moreover, the Boise Rescue Mission would not allow Bell to stay with her fiancé, now her husband, because it prohibits couples from staying together in the same shelter facilities. Bell received two citations under § 9-10-02 for sleeping in parks and other public locations. On the morning of April 28, 2007, a Boise police officer approached Bell and another individual while they were sitting on a riverbank. Bell did not have a tent or bedroll at the time, only a backpack with some personal belongings, yet she still received a citation. On the second occasion, on May 22, 2007, Bell had just arrived in a secluded location where other homeless individuals slept and put down a bedroll
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when an officer arrived, wrote citations, and threatened to arrest the individuals if they did not leave immediately. Bell has been convicted twice under the statute and received a thirty-day suspended sentence. In addition to these two instances, there were several other occasions on which Boise police officers approached Bell and threatened to arrest her for napping or sitting with friends in secluded areas. She ultimately was forced to sleep in the bed of a pickup truck, outside the Boise city limits, because she feared that she would be cited and/or arrested by Boise police officers if she fell asleep in public places in Boise. She knew that another citation would result in the revocation of her suspended sentence and that she would be incarcerated.
8. Plaintiff BRIAN S. CARSON is a lifelong resident of Boise who is now homeless. He became homeless three years ago when he was unable to afford to pay the rent for his apartment. He is actively seeking employment, but has not found any employers who are hiring full-time employees. Even if he were able to secure a full-time position, he estimates that it would take several months to save enough money to rent an apartment (which would require an upfront payment of the first and last month’s rent and a security deposit). Over the past three years, Carson has been turned away from area shelters numerous times because they were full. In addition, he has not been able to stay at the Boise Rescue Mission River of Life shelter because of that shelter’s religious requirements. On or about the morning of May 6, 2009, Carson received a disorderly conduct citation for sleeping in public. He had unsuccessfully attempted to find shelter the previous evening and eventually became so tired that he fell asleep next to a building in downtown Boise. He was awoken early the next morning by a kick from a Boise police officer. The officer issued Carson a disorderly conduct citation and told Carson that if he allowed him to sleep outside, others would do the same, which would be a “mess.” Carson did not engage in any conduct that was disorderly, he was merely sleeping in a public place. The
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officer arrested Carson because of a warrant associated with a previous citation, and Carson spent two days in jail. He was billed $50 for this period of incarceration, which he cannot afford to pay. He also has additional outstanding fines from previous citations that he cannot pay. Carson was recently convicted of the disorderly conduct charge and served four days incarceration. Carson fears that he will receive additional citations for sleeping in public places that will interfere with his ability to find employment and housing. He does not have the money to pay additional criminal fines.
9. Plaintiff CRAIG FOX is a homeless Boise resident. He moved to the Boise area three years ago to help his elderly mother who lived in Meridian. He became homeless several months ago after he lost his job at a convenience store. He has had difficulty obtaining employment because of the economy and because he has severe arthritis in his hip, which limits his mobility. He has explored the possibility of housing assistance, but Boise currently has a sixmonth waitlist for any form of housing assistance. In May 2009, Fox received a disorderly conduct citation for sleeping in Ann Morrison Park in Boise. During the afternoon, while he was waiting for the Sanctuary shelter to open, he laid down on a bench in the park. A Boise police officer woke him up and issued a disorderly conduct citation. The officer explained to Fox that it is illegal to sleep on a bench within the Boise city limits and that he could only lie on the grass. Fox was convicted of disorderly conduct and served two days incarceration. Fox worries that having this conviction on his record will make it more difficult for him to find employment, housing, and benefits. He also fears that he will receive additional citations and fines that he cannot afford to pay. Fox tries to keep moving, to the extent that his arthritis allows him to, in an effort to avoid being noticed by Boise police officers. When he stops in any one place, he tries to remain hidden.
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10. Plaintiff ROBERT WILLIAM MARTIN is a homeless Boise resident. He has been homeless on and off for the past eleven years, since he was eighteen years old. Martin suffers from a mental illness and a physical disability, which prevent him from maintaining employment. He has been prescribed anti-psychotic, anti-depression, and anti-anxiety medications, however he has not been able to get these prescriptions filled for the past ten months. He is currently awaiting a determination of his eligibility for Social Security disability benefits and is attempting to receive medical treatment from the Terry Reilly Health Services Clinic. He used to stay at the Sanctuary shelter with his wife and small child, but the family was asked to leave because, he was told, his wife had too many belongings. His wife and child now stay with family members, but Martin cannot stay with them. He tried to stay at the River of Life shelter but has been told not to return because his disabilities make it difficult for him to wake up at the required time. Martin received a camping citation on March 21, 2009. He was sleeping in the bushes not far from the Corpus Christi House day shelter and a soup kitchen. Because of his disabilities, it is difficult for him to walk, and he must stay close to the day shelter and soup kitchen so that he can eat, take showers and clean his clothes. He told the Boise police officer who cited him that he was unable to stay at a shelter, but the officer issued a citation anyway. Martin pled guilty because he did not have the funds to hire an attorney and was afraid that challenging the citation would result in additional court costs and incarceration. Since he received his camping citation, officers have threatened Martin with more camping citations and cited him under other statutes for sleeping in public places. On April 24, 2009, Martin received a citation for disorderly conduct merely for sleeping in the alley behind the Sanctuary shelter. At the present time, Martin does not know where he will sleep from night to night and fears that he will receive additional citations and fines that he cannot afford to pay. He hopes to get his
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bicycle fixed so that he can go to the foothills outside the City limits to sleep without police interference or the threat of citation.
11. Plaintiff LAWRENCE LEE SMITH was a homeless Boise resident. He suffers from degenerative joint disease of his left hip and knee that prevents him from engaging in his former employment in construction and sprinkler installation. He receives Social Security benefits, but these funds are not sufficient to cover the cost of living and renting an apartment in Boise. For many years, he lived in a camper van, but his van was stolen. Now he often sleeps along the Boise River and in other out-of-the-way areas in Boise. He does not stay at the Boise Rescue Mission shelter because the Boise Rescue Mission’s religious philosophy and activities requirements conflict with his religious beliefs and because the Boise Rescue Mission places a seventeen-day maximum on the length of stay for men who do not enroll in their religious programming. Smith received two camping citations from the same Boise police officer on April 28, 2007 and May 12, 2007 for setting up a tent in secluded areas near the river. Because he was sleeping deep in the woods and could not be observed from any public path, he believes that the officer sought him out to issue a camping citation. He was convicted and served ninety days incarceration for the first citation and ten days incarceration for the second citation. In addition, he missed one of his court appearances and was convicted of failing to appear. After he was arrested, he lost his tent, his stove, and his fishing equipment, which had helped him sustain himself in the absence of shelter. Smith fears that he will face additional citations and/or arrest by Boise police officers on the nights when he has no choice but to sleep in public places of Boise. He does not have money to pay any additional criminal fines. He left Boise because of the real threat that he will face citation, arrest, and incarceration for sleeping outdoors.
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12. Plaintiff ROBERT ANDERSON is a homeless Boise resident. He became homeless after losing his job as a restaurant cook and has been unable to find permanent employment. He received a camping citation on September 1, 2007. He had been staying at the Boise Rescue Mission, but was forced to leave because of the shelter’s policy of allowing men to stay for only seventeen days unless they enroll in the shelter’s religious programming. He and some other men slept in the foothills, in an area they believed was outside of the Boise city limits. At approximately 8:00 a.m. the next morning, a Boise police officer found them and issued camping citations. Anderson believes that the officer specifically sought out homeless individuals to whom he could issue citations. Anderson was convicted and served one day incarceration and received a $25.00 fine which he could not afford to pay. Anderson fears receiving additional citations and more fines that he will not be able to pay.
13. Plaintiff PAMELA S. HAWKES was a homeless Boise resident. She received ten different camping citations from Boise police officers between May and August 2007 that resulted in periods of two to fours days incarceration per citation and fines. She often had no choice but to sleep in public places because she could not find space in Boise shelters. She left Boise because she feared that Boise police officers would continue to cite and arrest her pursuant to § 9-10-02, and she did not have the ability to pay more criminal fines. B. Defendants
14. Defendant CITY OF BOISE (hereinafter “City”) is a municipal corporation, organized under the laws of the State of Idaho, with the capacity to sue and be sued. The City is the legal and political governmental entity responsible for the actions of the Boise Police Department, its officials, agents, and employees. The City is sued in its own right and on the basis of the acts or omissions of its officials, agents, and employees.
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15. Defendant BOISE POLICE DEPARTMENT (hereinafter “Department”) is the municipal agency responsible for policing the City and for enforcement of Boise Municipal Code §§ 9-10-02 and 6-01-05(A). The Department is sued in its own right and on the basis of the acts and omissions of its officials, agents, and employees.
16. Defendant MICHAEL MASTERSON has been the Chief of Police since January 2005. As such, he is responsible for the administration and operation of the Department, and ultimately, for the enforcement of Boise Municipal Code §§ 9-10-02 and 6-01-05(A). Under his direction, Boise police officers have issued numerous camping citations to Plaintiffs for allegedly violating Boise Municipal Code §§ 9-10-02 and 6-01-05(A) and have threatened Plaintiffs with citations and/or arrest. Chief Masterson is sued in his official capacity. FACTUAL ALLEGATIONS A. Provisions at Issue
17. Boise Municipal Code § 9-10-02 makes it a crime for any person “to use any of the streets, sidewalks, parks or public places as a camping place at any time.” The terms of this ordinance are broad, such that it covers sleeping or resting in any public place in Boise at any time of the day or night. The statute does not define “camping place,” and police officers have cited individuals for sitting and sleeping in public places throughout the City. The only exception in the statute to this complete ban is for the “operation of a sidewalk café.”
18. The Boise Police Department does not maintain written guidance or training materials regarding the enforcement of § 9-10-02. In response to a request under the Idaho Public Records Act, the Department stated that it had no such materials. In contrast, the Department maintains training materials and written guidance pertaining to other municipal ordinances. The Boise Community Ombudsman’s December 20, 2006 Special Report on Interactions Between the Boise Police Department and the Homeless (“Ombudsman’s Report”)
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recommended that the Boise Police Department create a written, binding protocol governing its officers’ interactions with homeless individuals. Ombudsman’s Report at 44. On information and belief, the Police Department never created such a protocol.
19. Because there is no written guidance on the statute’s enforcement, Defendants have a policy and custom of enforcing the statute broadly; the statute’s prohibition on camping amounts to a ban on sleeping, lying down, or sitting – basic necessities in life.
20. Boise Municipal Code § 6-01-05(A) criminalizes “occupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof” as “disorderly conduct.” This ordinance is also very broad in that it explicitly prohibits sleeping in any public place in Boise at any time of the day or night and, thus, explicitly bans a necessary function of life.
21. On information and belief, the City, through the Boise Police Department, Chief of Police, and police officers, aggressively and selectively enforces the anti-camping ordinance and the disorderly conduct ordinance’s prohibition on sleeping in public against homeless individuals in Boise in order to force these individuals to make the untenable choice between criminal convictions and leaving the City. On information and belief, the enforcement of these ordinances is part of a policy promoted by the City, the Boise Police Department, and Chief Masterson to “solve” the homelessness problem in Boise. B. Homelessness in Boise
22. Federal law defines a “homeless individual” to include one who lacks a fixed, regular and adequate night-time residence, or one who resides in a shelter, transitional housing or a place not ordinarily used for sleeping accommodations, such as streets, automobiles,
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abandoned buildings, parks or other public spaces. Stewart B. McKinney Homeless Assistance Act of 1987 § 103(a), 42 U.S.C. § 11302(a) (2000).
23. According to the Ombudsman’s Report, estimates of the size of Boise’s homeless population have varied widely. While a supervisor in the Boise Police Department estimates that the total size of the homeless population is between 1,500-2,000 persons, the Boise Mayor’s Ten Year Plan to Address Homelessness Committee estimates that the number is approximately 4,500. Ombudsman’s Report at 11, 13. According to the Idaho Food Bank, on any given night there are approximately 2,000 homeless individuals in Boise. Id. Anecdotal estimates from other service providers suggest that there are more than 3,000 homeless individuals in Boise. Id.
24. Boise’s homeless population consists of single men and women, couples, and single and two-parent families with children. An increasing number of Boise’s homeless individuals are military veterans. Until the recent economic downturn, many of Boise’s homeless individuals were employed, either in regular jobs or more sporadically as day laborers, but did not earn enough money to afford housing in Boise. Many have difficulty maintaining employment because jobs are not available in the current economic climate, they lack sufficient skills and education, and/or they have physical or mental disabilities.
25. Approximately 350-500 people are chronically homeless in Boise. “Chronically homeless” individuals are those who have been homeless for more than a year or who have had at least four episodes of homelessness in the last four years. See 24 C.F.R. 91.5.
26. Between forty and seventy percent of homeless individuals in Boise suffer from alcohol or drug dependence and are either mentally ill or chronically homeless. These individuals have the most difficulty accessing and benefiting from the social service resources that are available.
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27. These individuals also interact the most with the Boise Police Department. As the Ombudsman’s Report explained, “Police officers are not trained to perform social work functions; yet, persons experiencing homelessness often become the responsibility of law enforcement agencies because of the minor misdemeanors they commit.” Ombudsman’s Report at 2. This report indicated that members of the Boise Police Department were inadequately trained and prepared to deal with the problems of Boise’s homeless population, including mental illness, alcohol or dependence, and lack of shelter and other resources. Id. at 2, 22, 24-25, 44. C. Effect of Enforcement of §§ 9-10-02 and 6-01-05(A)
28. Repeat citations or convictions under §§ 9-10-02 and/or 6-01-05(A) for camping or sleeping in public can have a detrimental effect on an individual’s health and his or her ability to find and continue employment, procure and maintain housing, and receive government assistance or benefits.
29. Defendants’ actions pose a health risk to the homeless population of Boise because the constant need to keep moving to avoid citations under §§ 9-10-02 and 6-01-05(A) prevents these individuals from sleeping. Sleep is a physical and mental necessity for people to properly function. Lack of sleep causes disruptions in cognitive function and exacerbates a myriad of physical and mental health problems.
30. Homeless individuals like Plaintiffs typically cannot afford to pay the fines associated with violations of §§ 9-10-02 and 6-01-05(A). These individuals often do not have a permanent address or telephone, which makes it difficult for them to receive communications from the court, such as Notices to Appear. They also often lack reliable transportation. If they fail to appear in court, they receive additional citations and fines for failing to appear. If these fines are not paid, the homeless individual may be subject to a civil contempt order, which only worsens the situation. Incarceration is also disruptive and expensive. Periods of incarceration
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interrupt employment and social security disability benefits. Moreover, a homeless individual can be charged the costs for his or her incarceration.
31. Homeless individuals must disclose criminal convictions, even for minor infractions, on applications for public housing. These convictions become a matter of public record. As a result, the convictions may cause them to lose the opportunity to obtain permanent public and private housing. Additionally, an individual may lose a housing placement if he or she is incarcerated. Conviction and incarceration for camping can also interfere with the ability to obtain and maintain Social Security disability benefits. Recipients may not receive benefits for any period in which they are incarcerated. In addition, those applying for benefits may miss crucial hearings or deadlines while incarcerated, delaying their receipt of much needed income.
32. Likewise, individuals must disclose criminal convictions when they apply for employment, and even minor infractions may make a potential employer less likely to hire an applicant. Missing work due to required court appearances or because of periods of incarceration may lead to the loss of employment and income.
33. Defendants’ policy, custom and practice of issuing citations to, arresting, and harassing homeless individuals like Plaintiffs under §§ 9-10-02 and 6-01-05(A), under the circumstances alleged herein, has the effect of “criminalizing” homelessness. These measures do not accomplish any significant or legitimate public policy goal. Instead, they perpetuate the cycle of homelessness by decreasing opportunities for homeless individuals to find housing and gainful employment and take care of their health needs. “[T]he criminalization of homelessness does nothing to address the underlying causes of homelessness and often serves to exacerbate them. . . . It serves only to move people away from services and causes them to acquire a criminal record, thus making it even more difficult for them to obtain employment and housing.”
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Ombudsman’s Report at 5 (summarizing problems described in A Dream Denied: The Criminalization of Homelessness in U.S. Cities). D. Availability of Shelter
34. In Boise, the need for shelter space far exceeds the availability of shelter space. On any given night there are between 2,000 and 4,500 homeless individuals in Boise, yet there are only 310 year-round emergency shelter beds and overflow or cold-weather space for approximately 400 more to sleep on mats on the floor. Ada County’s 2007 Continuum of Care application (indicating that Boise has 310 year-round emergency shelter beds, “overflow” space for an additional 291 individuals, and room for 80 more individuals in the colder months). This means that, on any given night in Boise, there are at least 1,300 people who will not be able to find safe and legal shelter.
35. An October 30, 2008 Idaho Statesman article entitled “Homeless crowding Valley shelters already” described how local shelters were dramatically above capacity in the fall of 2008:
Guest overflow areas—such as couches and dining room floors— already are in use at places like City Lights Home for Women and Children in Boise, weeks before the cold-weather rush. The shelter, which has 38 beds, is averaging 58 nightly guests this month. Guests who don’t get beds sleep on mats in the dining room. As recently as October of 2009, shelters have reported operating at or above capacity. The Interfaith Sanctuary reported that its shelter space has been full for some time because there are fewer options available to people and it is taking longer for individuals and families to move out of the shelter. Its shelter space reserved for women and families is often completely full and it has a waiting list for men on most nights.
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36. Every night, hundreds of homeless individuals sleep outside because the need for bed space at local shelters far outstrips the number of beds. A 2007 point-in-time study cited in Ada County’s Continuum of Care Application counted members of Boise’s homeless population in certain locations in one night. It found 564 sheltered individuals—that is, those in emergency or transitional shelters—and 303 unsheltered individuals—those “sleeping in places not meant for human habitation.” This study counted individuals at shelters and outdoor locations where homeless persons were known to sleep. The study did not include the many individuals who find temporary shelter with friends or family members on certain nights. The study also did not account for homeless persons who sleep outdoors in more secluded areas.
37. With the budget cuts and heavy job losses spurred by the global economic crisis, the number of homeless individuals and families in the Boise area will likely increase.
38. Shelter spaces in Boise are frequently unavailable to certain subsets of the homeless population or have restrictions that prevent certain homeless individuals from staying in them. For instance, minutes from the October 2008 meeting of the Homeless Coalition indicated that at that time the Salvation Army had a two- to three-month waiting list for single women who need shelter. Minutes from the Homeless Coalition’s February 2009 meeting indicated that the Sanctuary Shelter had no space for women and that the Salvation Army had a one-and-a–half-month wait for families. Minutes from the Homeless Coalition’s April 2009 meeting reported that the Salvation Army still had a one-and-a-half to two-month waiting list. The Interfaith Sanctuary routinely has a waiting list for single men. Some shelters do not allow couples to stay together, limit the length of time any one person can stay to a maximum of seventeen or thirty days after which they may not return for a period of thirty days, emphasize
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religious beliefs that may conflict with the beliefs and religious faith of individuals who need shelter, or have schedules that hamper individuals’ employment opportunities.
39. Finally, some individuals who are eligible for assistance to secure permanent housing have to wait for long periods of time for such assistance or housing to become available. The October 2008 meeting minutes of the Homeless Coalition indicated that there was a two- to three-year waiting list for Section 8 housing in the Boise area. Recent funding cuts have further limited the number of families and individuals in Boise that can be housed through the federal Section 8 Voucher Program. As a result, this waiting list will likely grow longer.
40. Because of the lack of shelter space and the inability to obtain permanent housing, a large number of individuals who are homeless in Boise will remain so for the foreseeable future. E. Pattern of Enforcement
41. At all relevant times, Defendants and their agents acted under color of state law and within the scope of their employment.
42. The City of Boise, through its Police Department, and the Chief of Police maintain a policy, custom and practice of unlawfully enforcing § 9-10-02 against homeless individuals. The Ombudsman’s Report credits the “consistent effort and pressure” by the Boise Police Department for the elimination of permanent homeless camps: “Through solid effort and real pressure by the Boise Police Department, no established camps exist today along the Greenbelt. . . . At present, it might be possible to find one or two people in the parks at night; but there will be no established camps.” Ombudsman’s Report at 18-19.
43. The majority of camping citations are issued by officers in the Bike Patrol Unit who patrol the Greenbelt and Boise’s parks. The Boise Police Bike Patrol 2007 Annual Report (“Bike Patrol Report”) states that by changing the hours of deployment, officers in the Bike
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Patrol issued substantially more camping citations in 2007 than prior years and were “very successful in curbing the number of campers.” Bike Patrol Report at 17. In fact, in 2006 Bike Patrol Unit officers issued only 30 camping citations; in 2007, enforcement of the anti-camping ordinance increased significantly with these officers issuing 162 citations for camping. Id.
44. Defendants enforce Boise Municipal Code § 9-10-02 most between the months of April and September. Additionally, Defendants have given most citations between the hours of 5:30 and 8:00 a.m. when homeless individuals who have slept outside the night before wake up and prepare to leave the area. Boise police officers target outdoor areas where homeless individuals sleep. For instance on June 16, 2007, one officer issued at least five camping citations between 5:30 and 6:15 a.m. The next day, he issued at least three camping citations before 8:00 a.m.
45. The harassment of Boise’s homeless population is not limited to citation or arrest under § 9-10-02. Recently, Boise police officers have begun issuing disorderly conduct citations pursuant to § 6-01-05(A) to homeless individuals sleeping in public places. Upon information and belief, the City of Boise, through its Police Department, and the Chief of Police, has expanded its enforcement tools as part of its policy, custom and practice of unlawfully arresting, citing, threatening to cite, or otherwise harassing homeless individuals who engage in sleeping, and other necessary activities of life, in public places.
46. Plaintiffs have each received citations and/or convictions, or threats of citations, for violations of Boise Municipal Code §§ 9-10-02 and/or 6-01-05(A) for sleeping or lying down in public. On information and belief, with knowledge that Plaintiffs were homeless and had no lawful place to sleep or rest within the City of Boise because of a chronic shortage of shelter beds, Boise police officers issued citations, arrested, and/or threatened Plaintiffs in an effort to
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drive them and other homeless individuals out of the City of Boise. As a result, Plaintiffs often had to move constantly all night long, or sleep outside of the Boise city limits to avoid further harassment from police officers.
47. On information and belief, Chief of Police Masterson was aware that officers in the Boise Police Department unlawfully targeted Boise’s homeless population and cited, arrested, or threatened to cite or arrest Plaintiffs and other homeless individuals for sleeping in public and either directed or condoned the behavior of his officers. The City’s Ombudsman’s Report and Police Department publications, such as the Bike Patrol Report, document the City’s policy, custom and practice of criminalizing homelessness and publicized the dramatic increase in camping citations in 2007 and the “success” of their enforcement efforts.
48. Local newspaper articles, the Ombudsman’s Report and Police Department publications publicized the Boise Police Department’s practice of issuing camping citations to homeless individuals who have no legal place to sleep or rest in Boise. Thus, City policymakers and other relevant individuals in positions of authority were aware of this practice and, at a minimum, knowingly permitted these actions by Boise police officers.
49. In addition, the City, its Police Department, and Chief Masterson, failed to exercise the proper supervision over Boise police officers’ interactions with homeless individuals and failed to train these officers in how to appropriately and lawfully enforce §§ 9-10-02 and 601-05(A). This policy of inadequate training and supervision constitutes deliberate indifference on the part of Defendants towards the rights of homeless individuals with whom the police come into contact.
50. Defendants’ polices and practices have caused Plaintiffs to suffer – and unless enjoined will continue to cause Plaintiffs to suffer – humiliation; psychological, physical, and
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Case 1:09-cv-00540-REB Document 1 Filed 10/22/09 Page 20 of 24
emotional suffering; degradation, pain, and injury; financial loss; and loss of privacy and basic constitutional and human rights. FIRST CLAIM FOR RELIEF Violation of Prohibition Against Cruel and Unusual Punishment (Eighth Amendment; 42 U.S.C. § 1983; Idaho Constitution, Article I, § 6)
51. Plaintiffs hereby incorporate all preceding paragraphs as if fully set forth herein. 52. Poverty, unemployment, untreated mental and physical illness, drug and alcohol dependence, and the City’s failure to provide adequate shelter space often forces Plaintiffs and other homeless individuals to sleep in public places in Boise. 53. Although Plaintiffs are homeless and have no way to comply with Boise Municipal Code §§ 9-10-02 and 6-01-05(A) because they must sleep outdoors, Defendants have cited, arrested, or threatened Plaintiffs for sitting, lying, or sleeping in public places in Boise. Defendants are punishing Plaintiffs and other homeless individuals based on their status as homeless persons. 54. Defendants’ actions that penalize Plaintiffs for their homeless status constitute cruel and unusual punishment in violation of Plaintiffs’ well established rights under the Eighth Amendment of the United States Constitution as incorporated in, and applied to the states through, the Fourteenth Amendment. Such actions also violate Article I, § 6 of the Idaho Constitution. Plaintiffs seek redress for Defendants’ violation of their right to be free from cruel and unusual punishment. SECOND CLAIM FOR RELIEF Violation of Equal Protection—Fundamental Right to Travel (Fourteenth Amendment; 42 U.S.C. § 1983; Idaho Constitution, Article I, §§ 2, 13) 55. Plaintiffs hereby incorporate all preceding paragraphs as if fully set forth herein.
COMPLAINT – Page 20

Case 1:09-cv-00540-REB Document 1 Filed 10/22/09 Page 21 of 24
56. Defendants’ policy and custom of citing and arresting homeless individuals under Boise Municipal Code §§ 9-10-02 and 6-01-05(A) make it impossible for homeless individuals to travel to or reside in Boise. Plaintiffs and other homeless individuals cannot live in Boise without violating the anti-camping ordinance or the disorderly conduct statute’s prohibition on sleeping in public because every individual has a physical and mental need to sleep at some point while in the City, and these individuals have no place to sleep but outdoor public areas. Enforcement of these ordinances therefore serves the purpose and has the effect of driving homeless people out of the City or deterring them from entering City.
57. The City’s implementation of the ordinances is not supported by a permissible and compelling state interest.
58. The Defendants have impermissibly burdened the fundamental right of homeless individuals to interstate and intrastate travel in violation of the substantive Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and in violation of Article I, §§ 2 and 13 of the Idaho Constitution. Plaintiffs seek redress for Defendants’ violation of their right to travel. THIRD CLAIM FOR RELIEF Violation of Due Process—Vagueness (Fourteenth Amendment; 42 U.S.C. § 1983; Idaho Constitution, Article I, § 13)
59. Plaintiffs hereby incorporate all preceding paragraphs as if fully set forth herein. 60. Boise Municipal Code § 9-10-02 fails to define the camping offense clearly, so that ordinary people can understand the prohibited conduct. Boise police officers have issued citations for a wide range of activity including that which falls outside of a “commonsense” understanding of camping, such as for sitting by a riverbank or for sleeping outside with only a bedroll. Boise police officers have also threatened individuals with citation for simple actions
COMPLAINT – Page 21

Case 1:09-cv-00540-REB Document 1 Filed 10/22/09 Page 22 of 24
like removing one’s shoes in a park. Ordinary people would not expect to be subject to a camping citation for such conduct.
61. In addition, Boise Municipal Code § 9-10-02 fails to provide guidance to law enforcement personnel to prevent the possibility of arbitrary and discriminatory enforcement. The lack of statutory guidance is particularly problematic because the Boise Police Department does not provide written materials regulating how officers should enforce the ordinance.
62. Boise Municipal Code § 9-10-02 is unconstitutionally vague in violation of the Fourteenth Amendment to the United States Constitution and Article I, § 13 of the Idaho Constitution. Plaintiffs seek redress for Defendants’ violation of their due process rights. FOURTH CLAIM FOR RELIEF Violation of Due Process—Overbreadth (Fourteenth Amendment; 42 U.S.C. § 1983; Idaho Constitution, Article I, § 13)
63. Plaintiffs hereby incorporate all preceding paragraphs as if fully set forth herein. 64. As applied to Plaintiffs, §§ 9-10-02 and 6-01-05(A) penalize involuntary, harmless, and inoffensive conduct in public places in Boise. Defendants’ citation and arrest of Plaintiffs for sleeping or resting in parks or on public streets when those individuals have nowhere to seek lawful shelter interferes with Plaintiffs’ constitutional rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual punishment and to travel. 65. As such, Boise Municipal Code §§ 9-10-02 and 6-01-05(A) are unconstitutionally overbroad in violation of the Fourteenth Amendment to the United States Constitution and Article I, § 13 of the Idaho Constitution. Plaintiffs seek redress for Defendants’ violation of their due process rights. PRAYER FOR RELIEF WHEREFORE, based on the allegations asserted herein, Plaintiffs respectfully request relief as follows:
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1. A temporary restraining order and/or preliminary and permanent injunction, enjoining Defendants, their officers, employees, assignees, successors, and agents from enforcing Boise Municipal Code §§ 9-10-02 and 6-01-05(A), with respect to persons sleeping or lying down in public;
2. An order compelling the City of Boise authorities to seek expungement of the records of any homeless individuals unlawfully cited or arrested and charged under §§ 9-10-02 or 6-01-05(A).
3. An order requiring the reimbursement of any criminal fines paid by those homeless individuals as a result of these unlawful citations and arrests, as well as the payment of any costs of incarceration billed to individuals and the reimbursement of costs paid by these individuals.
4. A declaration that Defendants’ past, present, and threatened future actions violate Plaintiffs’ rights to be free from cruel and unusual punishment under the United States and Idaho Constitutions;
5. A declaration that Defendants’ past, present, and threatened future actions violate Plaintiffs’ rights to due process of law under the United States and Idaho Constitutions;
6. Award of damages according to proof; 7. Plaintiffs’ costs incurred in this lawsuit pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, as well as provisions of Idaho law; 8. Plaintiffs’ reasonable attorney’s fees, with respect to work performed by the National Law Center on Homelessness & Poverty and Latham & Watkins, LLP, pursuant to 42 U.S.C. § 1988 and analogous provisions in Idaho law; 9. All such other relief as this Court deems just and proper.
COMPLAINT – Page 23

Case 1:09-cv-00540-REB Document 1 Filed 10/22/09 Page 24 of 24
JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiffs hereby request a
jury trial.
Respectfully submitted this 22nd day of October, 2009.
/s/ Howard A. Belodoff
Howard A. Belodoff, ISB # 2290 Zoe Ann Olson, ISB # 5856 IDAHO LEGAL AID SERVICES, INC. 310 N. 5th Street P.O. Box 913 Boise, ID 83701 (208) 336-8980│Phone (208) 342-2561│Fax
Tulin Ozdeger, # 476548 (DC) Catherine Bendor, # 442437 (DC) The National Law Center on Homelessness & Poverty 1411 K Street, Suite 1400 Washington, DC 20005 (202) 638-2535│Phone (202) 628-2737│Fax
Marguerite M. Sullivan, # 497894 (DC) Kristi N. O’Malley, # 498584 (DC) Heather Maria Johnson, # 986281 (DC) Latham & Watkins LLP 555 Eleventh Street Suite 1000 Washington, DC 2004-1304 (202) 637-2200│Phone (202) 637-2201│Fax
Attorneys for Plaintiffs
COMPLAINT – Page 24

 
 UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

JANET F. BELL, BRIAN S. CARSON, CRAIG FOX, ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT ANDERSON, PAMELA S. HAWKES, JONATHON LEIGH MILLER, JAMES M. GODFREY, BASIL E. HUMPHREY, and KIRK ROSS,

Case No.: CV 09-540-S-REB
MEMORANDUM DECISION AND ORDER

Plaintiffs,

vs.

CITY OF BOISE; BOISE POLICE DEPARTMENT; and MICHAEL MASTERSON, in his official capacity as Chief of Police,

Defendants.

Currently pending before the Court are: (1) Defendants’ Motion for Summary Judgment (Dkt. 77); (2) Defendants’ Motion to Dismiss Plaintiff Smith (Dkt. 80); and (3) Defendants’ Motion to Strike (Dkt. 96). All parties have consented to the jurisdiction of a United States Magistrate Judge. Dkt. 16. The Court has carefully reviewed the record; considered the oral argument of counsel at the hearing on this matter; and now enters the following Memorandum Decision and Order granting Defendants’ Motion for Summary Judgment (Dkt. 77) and dismissing Plaintiffs’ Amended Complaint (Dkt. 53).
MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiffs, all currently or formerly homeless individuals residing in Boise, contend
that Defendants, including the City of Boise, Boise Police Department, and Chief of
Police Michael Masterson, enforce Boise City ordinances against camping and sleeping in
public to force the homeless out of Boise.
A. Ordinances
The ordinances at issue are Boise City Code §§ 9-10-02 and 6-01-05(A)
(collectively “Ordinances”). Boise City Code § 9-10-02 (the “Camping Ordinance”)
makes it a crime for any person “to use any of the streets, sidewalks, parks or public
places as a camping place at any time.” The terms “camp” and “camping” are defined as
follows:
[T]he use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping).
B.C.C. § 9-10-02.
Boise City Code § 6-01-05(A) (the “Sleeping Ordinance”) criminalizes “disorderly
conduct,” defined to include sleeping in any location without permission of the owner.
Specifically, the ordinance prohibits “[o]ccupying, lodging or sleeping in any building,
MEMORANDUM DECISION AND ORDER - 2

structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof.” B.C.C. § 6-01-05(A). B. Allegations
Plaintiffs are individuals who either are or have been homeless and living in Boise. See Amended Complaint, ¶ 3 (Dkt. 53). All have been cited and convicted under either the Camping Ordinance, the Sleeping Ordinance, or both. Id. Plaintiffs claim that Defendants’ policy, custom, and practice of issuing citations to, arresting, and harassing homeless individuals, including Plaintiffs, under Boise City Ordinance §§ 9-10-02 and 601-05(A) has the effect of criminalizing homelessness. Id. at ¶ 35.
Plaintiffs contend that Defendants enforce the Ordinances aggressively and selectively against the homeless in order to drive them from the City. Id. at ¶ 23. The premise behind Plaintiffs’ claims is that the homeless in Boise have no choice but to be present on the streets during the day and night. Thus, to penalize them for harmless conduct, like sleeping, lying down, or sitting, is essentially penalizing them for nothing more than “being” without a home.
In addition, Plaintiffs contend that the Boise Police Department does not maintain written guidance or training regarding the enforcement of the Camping Ordinance and, as a result, Defendants have a policy and custom of enforcing the ordinance broadly and issue citations for sleeping, lying down, or sitting - basic necessities of life. Id. at ¶ 23.
MEMORANDUM DECISION AND ORDER - 3

Plaintiffs further contend that Defendants enforce the Sleeping Ordinance against anyone sleeping in any public place in Boise at any time of the day and night. Id. at ¶ 24. C. Claims and Relief Requested
Plaintiffs allege four constitutional claims: (1) Defendants’ enforcement of the Camping and Sleeping Ordinances against homeless people violates the Eighth Amendment’s prohibition against cruel and unusual punishment; (2) Defendants’ enforcement of the Camping and Sleeping Ordinances against homeless people violates the equal protection clause by impeding the homeless individuals’ fundamental right to travel; (3) the Camping Ordinance violates the due process clause because it is unconstitutionally vague; and (4) the Camping and Sleeping Ordinances violate the due process clause because they are unconstitutionally over-broad as applied to Plaintiffs, who are being punished for what is essentially innocent conduct. Amended Complaint (Dkt. No. 53). Plaintiffs seek declaratory and injunctive relief and monetary damages pursuant to 42 U.S.C. § 1983. More specifically, Plaintiffs’ requested relief includes inter alia: (1) an order enjoining Defendants from enforcing the Camping and Sleeping Ordinances against homeless people sleeping or lying down in public; (2) an order compelling the City of Boise to expunge the records of any homeless individuals cited or arrested and charged under the Camping or Sleeping Ordinances; (3) an order requiring reimbursement of any fines paid by or incarceration costs billed to homeless individuals for violation of the Camping and Sleeping Ordinances; and (4) declaratory relief.
MEMORANDUM DECISION AND ORDER - 4

D. Status Offense Case Law The United States Supreme Court has held that applying criminal laws to punish
the involuntary status of an individual is unconstitutional. See Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Supreme Court examined the constitutionality of a California statute that criminalized the status of being addicted to drugs. Id. at 666. Treating addiction like a disease, the Supreme Court held that punishing addiction is akin to punishing mental illness, leprosy, or venereal disease, and the Eighth Amendment prohibits the state from criminalizing the status of having such diseases. Id. at 666-67; see also Ingraham v. Wright, 430 U.S. 651, 666-68 (1977) (holding Eighth Amendment “imposes substantive limits on what can be made criminal and punished”).
The Supreme Court draws a distinction between laws that criminalize status, which are unconstitutional, and laws that criminalize conduct, which may be constitutional. For example, six years after deciding Robinson, the Supreme Court upheld a Texas statute that criminalized public drunkenness. See Powell v. State of Tex., 392 U.S. 514 (1968). In Powell, the Supreme Court rejected the trial court’s finding that the criminal defendant was compelled to appear drunk in public due to his chronic alcoholism, a disease that destroyed his will power to resist the excessive consumption of alcohol. Id. at 521. Distinguishing the case from Robinson, the Powell opinion states:
[A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home. MEMORANDUM DECISION AND ORDER - 5

Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards, both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from convicting one for being an addict, being a chronic alcoholic, being ‘mentally ill, or a leper . . . .’
Id. at 532 (quoting Robinson, 370 U.S. at 666). Thus, the Supreme Court in Powell found
the criminal defendant was not penalized for being an alcoholic; he was punished for the
conduct of being drunk in public, a behavior the State of Texas could criminalize without
violating the Constitution.
Applying this Supreme Court precedent, the Ninth Circuit held a Los Angeles
ordinance that criminalized sitting, lying, or sleeping in a public way at any time of day
was unconstitutional as applied to the homeless. Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) vacated by 505 F.3d 1006 (9th Cir. 2007).1 Because the record
established the number of homeless people in the City’s Skid Row neighborhood vastly
outnumbered the amount of shelter beds and low income housing available there, the
Court determined that the homeless had no choice but to be present on the
neighborhood’s streets and sidewalks. Accordingly, the City’s complete bar on sitting,
lying, or sleeping in public at any time of day in effect criminalized the homeless who had
no choice but to be present on the street. Id.
1 The Jones decision was later vacated as a result of a settlement agreement; therefore the opinion is not binding. Nonetheless, it does shed light on the issue and how the Ninth Circuit might approach such challenges in the future. MEMORANDUM DECISION AND ORDER - 6

In so ruling, the Ninth Circuit panel made a distinction between the Los Angeles
ordinance which operated as a complete ban on innocent acts, such as sitting, lying, or
sleeping in a public way at any time of day, and other ordinances that are directed toward
conduct beyond merely being present in public places.
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).
MEMORANDUM DECISION AND ORDER - 7

Id. at 1123-24. In Jones, the Ninth Circuit found that the overly expansive reach of the Los Angeles ordinance was its fatal flaw, as the homeless violated the statute just by being present on the public rights of way.
Under the framework adopted in Jones, determining whether Defendants have violated the Eighth Amendment requires a two-part inquiry. First, the Court must determine whether the homeless have no choice but to be present in the City’s public spaces. This could be established either on the basis that there is insufficient shelter space or perhaps because, for at least a portion of the homeless population, the “chronic homeless,” living in a shelter is not a viable option. Second, the Court must find that Defendants’ enforcement of the Camping and Sleeping Ordinances effectively penalizes the homeless for simply being present or engaging in innocent activity, such as sleeping, that does not warrant punishment under the Eighth Amendment and, in effect, criminalizes the status of being homeless.
In the instant case, Plaintiffs have not met their burden. Plaintiffs have not set forth sufficient evidence to support a reasonable inference that there is a class of homeless people in Boise who are unable to find shelter and are being prosecuted for merely being present in public. Instead, the undisputed facts reflect that the City of Boise offers safe harbor to the homeless in the city parks during the day, when they can sit, lie down, and sleep without fear of citation. See Affidavit of James R. Hall, ¶¶ 4-5 (Dkt. 77-8). Further, the City of Boise has a directive in place to ensure that no one is cited for
MEMORANDUM DECISION AND ORDER - 8

camping or sleeping in public at night when shelter space is otherwise available. See Affidavit of Claire Walker, Ex. 28 (Dkt. 77-6).
Fundamentally, the Court is satisfied that the City has devised a procedure that reasonably ensures that the homeless will not be cited for simply being present in public places when shelter space is unavailable. If there are instances when this policy breaks down, then the individuals cited under the ordinances can argue that the ordinance has been applied to them in an unconstitutional matter. Similarly, if the system begins to breakdown in a routine manner, then a renewed constitutional challenge can be made. However, on the instant record, the Court finds that the system in place reflects a reasonable means of addressing the issue and ensuring that the homeless are not being penalized simply for being present when they have no other place to be.
DISCUSSION As explained more fully below, the Plaintiffs’ right to retrospective relief is barred by the Rooker-Feldman doctrine. Moreover, Plaintiffs’ right to prospective relief is largely moot in light of the Boise Police Department’s Special Order clarifying its policy not to enforce either the Sleeping Ordinance or the Camping Ordinance when shelter space is unavailable at night. Further, there is no support for Plaintiffs’ allegation that the Sleeping Ordinance is enforced during the day. Thus, the Eighth Amendment challenge fails as a matter of law as do Plaintiffs’ claims brought under the due process clause.
MEMORANDUM DECISION AND ORDER - 9

A. Retrospective Relief and the Rooker-Feldman Doctrine
Under the Rooker-Feldman doctrine, the Court lacks subject matter jurisdiction
over Plaintiffs’ claims for retrospective relief. See Rooker v. Fidelity Trust Co., 263 U.S.
413 (1923), District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). The
Rooker-Feldman doctrine recognizes that “federal district courts lack jurisdiction to
exercise appellate review over final state court judgments.” Henrichs v. Valley View
Dev., 474 F.3d 609, 613 (9th Cir. 2007). This bar to jurisdiction covers direct appeals
from state court judgments, de facto appeals from state court judgments, and “any issue
raised in the suit that is ‘inextricably intertwined’ with an issue resolved by the state court
in its judicial decision.” Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003); see also Doe
v. Mann, 415 F.3d 1038, 1042 (9th Cir. 2005).
Principles of federalism underlie the rule, which recognizes the separate and
distinct jurisdiction of state courts over state court appeals. As the Ninth Circuit explains:
Rooker-Feldman is a powerful doctrine that prevents federal courts from second-guessing state court decisions by barring the lower federal courts from hearing de facto appeals from state-court judgments: If claims raised in the federal court action are ‘inextricably intertwined’ with the state court’s decision such that the adjudication of the federal claims would undercut the state ruling or require the district court to interpret the application of state laws or procedural rules, then the federal complaint must be dismissed for lack of subject matter jurisdiction. See Feldman, 460 U.S. at 483 n. 16 & 485. Simply put, ‘the United States District Court, as a court of original jurisdiction, has no authority to review the final determinations of a state court in judicial proceedings.’
MEMORANDUM DECISION AND ORDER - 10

Bianchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003) (quoting Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986)).
Applied to the instant case, the Rooker-Feldman doctrine bars Plaintiffs from seeking retrospective relief from the alleged injuries caused by the state-court judgments. This includes claims for damages based on criminal fines, incarceration costs, and lost wages, as well as an order compelling Defendants to expunge Plaintiffs’ criminal records. These requests for relief are designed to compensate Plaintiffs for the injuries occasioned by the state-court judgments. If the Court were to grant such relief, the instant lawsuit would serve as an end-run around the state court appellate process. Under RookerFeldman, the Court lacks subject matter jurisdiction to provide such relief, as it would undermine the state court’s jurisdiction and serve as a de facto appeal from the state court.
Moreover, in order to provide the requested retrospective relief, the Court would have to examine the particular circumstances giving rise to each citation. This is exactly the type of judicial review the Rooker-Feldman doctrine prohibits. Plaintiffs were the losing parties in state court; they are now complaining of injuries caused by state court judgments; and they are inviting the federal court to review and reject that judgment in each Plaintiff’s case. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (holding “[t]he Rooker-Feldman doctrine . . . is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court
MEMORANDUM DECISION AND ORDER - 11

proceedings commenced and inviting district court review and rejection of those judgments.”)2
At the same time, the Rooker-Feldman doctrine does not preclude the Court from considering the constitutionality of the City’s on-going enforcement of the Camping and Sleeping Ordinances and awarding declaratory or prospective injunctive relief from such enforcement. The distinction is that the retrospective relief is focused upon the validity of the state court’s judgments; whereas, the prospective relief is focused upon Defendants’ allegedly illegal conduct in enforcing the ordinances when shelter space is full. See Noel, 341 F.3d at 1164; Manufactured Home Communities Inc. v. City of San Jose, 420 F.3d 1022, 1029-30 (9th Cir. 2005). The Court does not risk conducting a de facto appeal from the state court judgments when focused upon the constitutionality of the Defendants’ on-going enforcement of the ordinances at issue. B. Claims for Prospective Relief
As explained more fully below, Plaintiffs’ claims for prospective relief are now largely moot. Article III of the Constitution limits federal court jurisdiction to actual “cases” and “controversies.” See U.S. Constn. Art. III § 1; see also Allen v. Wright, 468 U.S. 737, 750 (1984); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009).
2 The Court acknowledges, as discussed during the oral argument, that the very nature of such charges, when brought against homeless individuals in busy urban courts, limits the practical likelihood of constitutional challenges. However, the fact that the challenges were not brought at the time such charges were pending does not mean that such challenges could not have been brought. MEMORANDUM DECISION AND ORDER - 12

The “case or controversy” requirement “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen v. Wright, 468 U.S. at 750.
The district court does not have “jurisdiction to hear a case that cannot affect the litigants’ rights.” Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994) (holding claim moot because challenged statute was repealed). “Generally, a case should not be considered moot if the defendant voluntarily ceases the allegedly improper behavior in response to a suit, but is free to return to it at any time.” Id. Nonetheless, “if there is no reasonable expectation that the illegal action will recur . . . a case is deemed moot.” Id.
Defendants argue that the relief Plaintiffs request has been mooted in two ways. First, on January 1, 2010, the Boise Police Department issued a Special Order clarifying its policy not to enforce Boise City Code §§ 9-10-02 and 6-01-05(A) when shelter space is unavailable (“Special Order"). See Sergeant Clair Walker Affidavit, ¶ 6, Ex. 26 (Dkt. No. 77-6). Second, Boise City Code § 9-10-02 was amended to include a definition of camp or camping. For the reasons set forth below, the Court agrees.
1. Enforcement of the Sleeping and Camping Ordinances Underlying Plaintiffs’ Eighth Amendment claim is the assumption that Defendants enforce the Camping and Sleeping Ordinances against the homeless in Boise when the homeless have no choice but to be present somewhere in the City. However, the City of Boise has rendered moot the claims concerning enforcement of the ordinances at night MEMORANDUM DECISION AND ORDER - 13

when shelter space is unavailable. In addition, there is no factual support for the allegation that the sleeping ordinance is enforced during the day. Accordingly, the Eighth Amendment Claims are mooted in part and otherwise fail as a matter of law: the undisputed facts reflect that the homeless may sleep in the parks during the day (whether or not shelter space is available) and may sleep in the parks at night in the event shelter space is unavailable.
On January 1, 2010, the Boise Police Department adopted a Special Order concerning the enforcement of the Camping and Sleeping Ordinances. Affidavit of Clair Walker, ¶ 5 (Dkt. 77-6), Ex. 26. The Special Order states, “[o]fficers have discretion to enforce camping/sleeping in public ordinances except when, [1] Person is on public property and [2] There is no available overnight shelter.” Id. at Ex. 26 (emphasis added).
Available overnight shelter is defined as “a public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness at no charge. To qualify as available, the space must take into account sex, marital and familial status, and disabilities.” Id. The Special Order further explains that otherwise available shelter space is not considered available to a particular individual if it “is not suitable to meet the individual’s disability needs, or the individual has exceeded the maximum allowable stay [at the shelter].” Id. This individual exception expressly excludes “voluntary actions such as intoxication, drug use or unruly behavior.” Id. The Special Order also clarifies that “sleeping in a public park during park hours is not prohibited.” Id. MEMORANDUM DECISION AND ORDER - 14

To ensure that officers know when shelters are full, shelter personnel agreed to call the Boise Police Department around 11 p.m. if the shelter is full. Affidavit of Clair Walker, ¶ 10 (Dkt. 77-6). The Boise State University Dispatch office, which has a contract with the Boise Police Department for law enforcement services at the university, then distributes the information via Department-wide e-mail and records the information. Id. at ¶¶ 11, 12, 13. Thus, the Boise police officers who would otherwise enforce the Camping and Sleeping Ordinances are directed not to do so when shelter space is unavailable, and the City has devised a way to obtain this information directly from the shelters.
The Court is satisfied that this system, adopted January 1, 2010, is sufficient to foreclose any reasonable expectation that the alleged illegal action will recur. It is no longer reasonable to expect that the Boise Police Department will enforce the Camping and Sleeping Ordinances against homeless people at night when shelter space is unavailable.
This conclusion also renders moot the Plaintiffs’ argument that the homeless have no choice but to be present on the streets. The Court need not address the allegations regarding sufficiency of shelter space and the estimated number of homeless living in Boise on any given night, a moving target to be sure.3 In addition, the Court need not
3 As described by the parties in their briefing to the Court, the nature of the homeless population must also be scrutinized in light of the gender and age of the individuals. Some shelters accept only adult men, others only women and children. The Boise Police Department’s Special Order recognizes such limitations, as a shelter for one portion of the homeless population might be full on a given night, while a shelter for a different portion is not. MEMORANDUM DECISION AND ORDER - 15

consider whether homelessness is a chronic condition or the product of decision-making and free will, an analysis lending itself to the metaphysical. Instead, the focus of the Court’s inquiry is on what the City has done to accommodate the homeless, assuming that there will be some number of homeless individuals in need of shelter at any given time.
During the day, the homeless find safe harbor in the city parks and at night, they can find safe harbor in the city’s shelters and, when shelter space is unavailable, the City allows the homeless to sleep in the city parks. The Court finds the City’s approach reasonable and constitutionally sufficient.
Plaintiffs argue that there is a dispute of fact as to whether the City continues to enforce the Ordinances against homeless when the shelters are unavailable and the homeless have nowhere to go. See Response to Defendants’ Motion for Summary Judgment, p. 4 (Dkt. 85). However, the Special Order became effective January 1, 2010, and there is nothing in the record evidencing the routine enforcement of the Sleeping or Camping Ordinances in a manner inconsistent with the Special Order since its adoption.
In support of their argument, Plaintiffs cite to the following: (1) Fawn Pettet’s Affidavit stating there have been times since the Special Order was instituted that Sanctuary has been out of shelter space and did not call BSU dispatch (Dkt. 85-2, p.10); (2) statements in citations indicating the individuals cited claimed not to have shelter;4
4 These statements include the following: “have nowhere to stay” (Dkt. 85-9, p. 19); “just needed a place to sleep” (Dkt. 85-9, p.37); “had no place to stay” (Dkt. 85-9, p. 39); “had done his time at the Mission (ROL) and had no place to stay” (Dkt. 85-9, p. 41); “had done his 17 days at the mission” (Dkt. 85-9, p. 43); “Kicked out of ROL” with “[n]o place to stay;” (Dkt. 85-9, p. 45). MEMORANDUM DECISION AND ORDER - 16

and (3) statements by Boise City Police Officers indicating that, before issuing a citation, they would not check with the shelters to confirm whether space was available5 and are not required to check their e-mail to determine if shelter space is available.6
These statements are not sufficient to create an issue of fact concerning the constitutionality of a system reasonably devised to avoid issuing citations against the homeless when shelter space is unavailable. First, even if Sanctuary on occasion fails to call the City Police, this does not mean that the system generally is unreasonable or unreliable. Second, stating that any one shelter is unavailable is not sufficient to establish that there is no shelter space available in the City of Boise, since there are at least three shelters open every night. Third, even though the police officers are not required to check their email, they are encouraged to do so7 and there is no indication from the record that they routinely fail to do so. Thus, the Court finds that the undisputed facts support a finding that the City of Boise has devised a reasonable system to ensure that the ordinances are not routinely enforced against the homeless when shelter space is unavailable.
Plaintiffs also argue that there is a dispute of fact as to whether the City has enforced the Sleeping Ordinance against homeless individuals sleeping in public parks
5 See Declaration of Kristi O’Malley, Ex. 33 (Deposition of Andrew S. Johnson, 66:1315, 67:9-24) (Dkt. 85-5, pp.113, 114); Id. at Ex. 34 (Deposition of Anthony Dotson, 102: 9-24 (Dkt. 85-5, p. 148).
6 Id. at Ex. 35 (Deposition of Kevin R. O’Rourke, 81:4-19) ( Dkt. 85-6, p.30). 7 Id. at Ex. 35 (Deposition of Kevin R. O’Rourke, 81: 6-11) (Dkt. 85-6, p.30). MEMORANDUM DECISION AND ORDER - 17

during the day. See Response to Defendants’ Motion for Summary Judgment, p. 4 (Dkt. 85). In support of their argument, Plaintiffs cite to the depositions of Plaintiffs Janet F. Bell and Pamela S. Hawkes. However, neither of these women states that she was cited for sleeping in the parks during the day. Bell testified that she and her husband were awakened by Boise police officers as they slept in the park during the day. See O’Malley Affidavit, Ex. 24, Deposition of Janet F. Bell Nightengale, 63: 18-64-4 (Dkt. 87). Hawkes testified that she was told on several occasions that she could not sleep in certain areas within the park. Id. at Ex. 24, Deposition of Pamela S. Hawkes, 76:9-77:19 (Dkt. 85).
These statements do not support a reasonable inference that these women, or any other homeless individuals, have been cited for sleeping in the parks during the day. Instead, these statements reinforce testimony from Boise police officers who state that sleeping alone is permitted in the parks during the day, but they routinely check on folks who are lawfully sleeping to ensure their welfare. See, e.g. Affidavit of Officer Anthony B. Dotson, ¶¶ 12-13 (Dkt. 77-3); Affidavit of Officer Andrew S. Johnson, ¶¶ 10-11 (Dkt. 77-4); Affidavit of Officer Kevin O’Rourke, ¶¶ 12-13 (Dkt. 77-5).
In light of this evidence, the Court finds there is no genuine dispute of fact concerning day-time enforcement of the sleeping ordinance. Rather, the homeless in Boise can sleep in the public parks during the day, though they may be awakened on
MEMORANDUM DECISION AND ORDER - 18

occasion by the police who are ascertaining their circumstances as a means of checking upon their welfare.8
That is not to say that the homeless may camp in the Boise parks during the day. Camping is prohibited in the city parks and is only tolerated at night when the shelters are unavailable. However camping, unlike sleeping alone, is conduct that the parties do not dispute may be prohibited. What Plaintiffs argue is that Defendants must not use the Camping Ordinance as a means of targeting homeless individuals for the unavoidable consequence of sleeping with their belongings.
As discussed more fully below, the City has addressed this concern with a new definition in the Camping Ordinance that reasonably addresses the issue and provides the Boise City Police with guidance as to what, other than sleeping, may constitute camping. Again, this definition effectively moots Plaintiffs’ claim that the police are targeting the innocent act of sleeping rather than camping in public places.
The Court finds that the Special Order combined with the new definition of camping effectively moot Plaintiffs’ claims concerning the on-going enforcement of the Sleeping and Camping Ordinances. Because the City of Boise allows the homeless to sleep in the parks during the day and at night if the shelters are unavailable, there is no support for the allegation that the homeless have no choice but to be present and sleep on
8 The Court is mindful that such “welfare” checks can easily be misused by law enforcement as a means of harassment, intended not to check upon the welfare of the homeless individual, but rather to make the park an unwelcome place for the homeless individual. However, the mere possibility of such an ulterior motive for such contacts is not enough on this record to create an issue of fact precluding summary judgment. MEMORANDUM DECISION AND ORDER - 19

the street. Accordingly, the following claims fail as a matter of law: (1) the Eighth Amendment claim based on Defendants’ alleged enforcement of the Camping and Sleeping Ordinances against homeless people who have no choice but to be present in the City’s public spaces and (2) the equal protection claim based on Defendants’ alleged enforcement of the Camping and Sleeping Ordinances against homeless people who have no choice but to sleep on the street.
2. The Camping Ordinance and the City’s Definition of “Camping” Plaintiffs contend that the Camping Ordinance is unconstitutionally vague. An ordinance is “unconstitutionally vague within the meaning of the due process clause of the Fourteenth Amendment” when it fails to “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 353 (1983). In Kolender, the U.S. Supreme Court concluded that a statute requiring an individual to provide “credible and reliable” information was “unconstitutionally vague on its face because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.” Id. at 361. Camping is defined in the Camping Ordinance as using public property “as a temporary or permanent place of dwelling, lodging, or residence or as a living accommodation at anytime between sunset and sunrise.” B.C.C. § 9-10-02. Combined with the Boise Police Special Order, this means that a homeless individual can sleep and MEMORANDUM DECISION AND ORDER - 20

be present on public property with all of their belongings during the day but cannot camp overnight, unless the city shelters are full.
The Camping Ordinance further describes “indicia of camping” to include, inter alia, “storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping). B.C.C. § 9-10-02.
This language is adequate to put the public on notice of what conduct is prohibited. While the homeless are more likely than those with housing to be present in public places with their belongings, the Camping Ordinance is not so vague as to encourage discriminatory enforcement. The Camping Ordinance allows individuals, regardless of their housing status, to be present in the City’s public parks during the day -- resting, recreating, picnicking, sleeping, or just laying about. What the Camping Ordinance does not allow is using the parks as a dwelling place or sleeping in the parks overnight unless the city shelters are full.
Accordingly, the Camping Ordinance is not unconstitutionally vague. In enacting the Camping Ordinance, the City sought to prohibit, camping, but not prohibit the homeless, who often travel with their belongings, to be present on public property. The particulars of such a distinction are not easily drawn, and perhaps the distinction could be even more neatly drawn in the case of Boise’s Camping Ordinance. The task before the MEMORANDUM DECISION AND ORDER - 21

Court, however, is not to rewrite what has been written, but to assess whether what the City has adopted sufficiently draws the distinction. The Court is satisfied that the Camping Ordinance meets the necessary constitutional measure of clarity.
3. Due Process Claims: Ordinances Overbroad as Applied Plaintiffs contend that the Camping and Sleeping Ordinances violate due process, because they are unconstitutionally overbroad as applied to Plaintiffs. However, neither the United States Supreme Court nor the Ninth Circuit has ever applied the overbreadth doctrine outside the limited context of the First Amendment. See United States v. Salerno, 481 U.S. 739, 745 (1987); Nunez v. City of San Diego, 114 F.3d 935, 949 n. 11 (9th Cir. 1997). In addition, there is no persuasive authority suggesting the Court do so in the instant case. Accordingly, these claims fail as a matter of law. 4. Right to Travel Defendants seek summary judgment on Plaintiffs’ right to travel claims. Plaintiffs allege that the City’s enforcement of the Camping and Sleeping Ordinances effectively deprives the homeless in Boise of sleep, a necessity of life, thus unlawfully impinging on the rights of the homeless to travel to and through Boise. The right of travel is a basic constitutional right. Hospital v. Maricopa County, 415 U.S. 250, 254 (1974). People have a constitutional right to move from one place to another as they wish. City of Chicago v. Morales, 527 U.S. 41, 53 (1999). Because the right to travel is fundamental, any policy that burdens or impinges upon that right is
MEMORANDUM DECISION AND ORDER - 22

subject to strict scrutiny. In re Merrill Lynch Relocation Management, Inc., 812 F.2d 1116, 1122 (9th Cir. 1987).
Residency requirements that deny a basic “necessity of life” may render a statute unconstitutional in light of the right of travel. Hospital v. Maricopa County, 415 U.S. at 259; Int'l Org. of Masters, Mates & Pilots v. Andrews, 831 F.2d 843, 846 (9th Cir. 1987), cert. denied, 485 U.S. 962 (1988). States may, however, condition nonessential benefits and rights, such as lower college tuition and dissolution of marriage, on a term of residency. Id. Likewise, states may impose bona fide residence requirements to ensure that services and benefits go to actual residents of the state. Id. at 847.
Insignificant restrictions on travel, however do not amount to a denial of the fundamental right to interstate travel. Cramer v. Skinner, 931 F.2d 1020, 1031 (5th Cir.1991), cert. denied, 502 U.S. 907 (1991); cf. Hawaii Boating Ass'n v. Water Transp. Facilities Div., Dept. of Transp., State of Hawaii, 651 F.2d 661, 664 (9th Cir.1981) (holding durational residency requirement for preferential rates for mooring privileges in recreational boat harbors did not penalize fundamental right to travel). A state law implicates the constitutional right to travel when it actually deters such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of that right. Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986) (internal citations and quotations omitted).
Plaintiffs argue that Defendants’ enforcement of the Sleeping and Camping Ordinances discourages the homeless from migrating to or remaining in Boise. For the MEMORANDUM DECISION AND ORDER - 23

same reasons that Plaintiffs’ Eighth Amendment claims fail, so do Plaintiffs’ right to travel claims. The record before the Court does not support a reasonable inference that the homeless in Boise are being punished for sleeping, an unavoidable consequence of being. Accordingly, the homeless from other states should not be discouraged from migrating to or remaining in Boise.
5. Idaho State Constitutional Provisions State constitutional provisions must provide at least as much protection as their federal counterparts but may also provide greater protections for the individual. “[S]tate courts are at liberty to find within the provisions of their own constitutions greater protection than is afforded under the federal constitution as interpreted by the United States Supreme Court.” State v. Newman, 108 Idaho 5, 11, n.6, 696 P.2d 856, 862, n.6 (1985) (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)). This is because “federal and state constitutions derive their power from independent sources.” Id. Nonetheless, the parties here have not argued that the applicable state constitutional provisions provide greater protections than the federal counterparts. Accordingly, and without argument or case law to the contrary, the Court finds that the state constitutional challenges fail for the same reasons the federal constitutional claims fail.
CONCLUSION Plaintiffs’ claims for retrospective relief are barred by the Rooker-Feldman doctrine; the claims for prospective relief are largely moot in light of the City’s Special MEMORANDUM DECISION AND ORDER - 24

Order; and the remaining claim, that the Camping Ordinance is void for vagueness, fails as a matter of law. Accordingly, Defendants’ Motion for Summary Judgement (Dkt. 77) is granted. This decision renders moot Defendants’ Motion to Dismiss Plaintiff Smith (Dkt. 80); and Defendants’ Motion to Strike (Dkt. 96).
This decision does not bar Plaintiffs from bringing a future action contending that Defendants are not following the policy set forth in the Special Order. It simply means that the Special Order appears to address most of Plaintiffs’ concerns. If the Special Order in practice is ineffective, Plaintiffs and other homeless individuals residing in Boise are free to challenge the Ordinances either as a defense to any criminal charges brought in state court or by bringing another lawsuit in federal court concerning the on-going enforcement of the Ordinances. Obviously, in such a setting, it behooves the City of Boise to take appropriate measures to ensure that the actual enforcement of the Camping and Sleeping Ordinances meets the City’s states intentions, as described in this case.
ORDER In accordance with the foregoing, IT IS HEREBY ORDERED: 1. Defendants’ Motion for Summary Judgment (Dkt. 77) is GRANTED and
Plaintiffs’ Amended Complaint is DISMISSED; 2. Defendants’ Motion to Dismiss Plaintiff Smith (Dkt. 80) is MOOT; and
MEMORANDUM DECISION AND ORDER - 25

3. Defendants’ Motion to Strike (Dkt. 96) is MOOT. DATED: July 6, 2011 Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 26

 
 Case 1:09-cv-00540-REB Document 195 Filed 01/06/15 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

JANET F. BELL, et al., Plaintiffs, vs.
CITY OF BOISE, et al., Defendants.

Case No. CV 09-540-S-REB ORDER

Pending before the Court is Defendants’ Motion for Protective Order, seeking to limit the scope of the deposition of AnaMarie Guiles (Dkt. 193). Plaintiffs have not yet responded to this Motion, but the deposition at issue is set for tomorrow, January 7, 2015, and so the Court is issuing this Order to provide counsel guidance in advance of the deposition. The Court will entertain further briefing on the scope of appropriate questioning following the deposition, should either of the parties choose to further pursue the issue, because the Court recognizes that there has not been a full opportunity for an adversarial presentation to the Court because of the timing of the motion. A. Standards of Law
The Court may order the “discovery of any matter relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). Relevant evidence is any evidence tending to make the existence of any consequential fact “more probable or less probable

Case 1:09-cv-00540-REB Document 195 Filed 01/06/15 Page 2 of 5
than it would be without the evidence.” Fed. R. Evid. 401. Although viewed in light of Rule 401, “the question of relevancy is to be more loosely construed at the discovery stage than at the trial . . . .” See 8 Wright, Miller, and Marcus, FEDERAL PRACTICE & PROCEDURE, § 2008 at p. 125 (2010). That the evidence might be inadmissible does not preclude discovery so long as the request “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). However, whether the Court orders information discoverable is subject to the balancing test of Rule 26(b)(2)(C), which requires courts to weigh the probative value of proposed discovery against its potential burden.
Federal Rule of Civil Procedure 30 sets forth the process for conducting depositions by oral examination. A party may depose the opposing party in a lawsuit without leave of the Court, except in circumstances not relevant here. Fed. R. Civ. P. 30(a)(1). During the deposition, counsel for the deponent may object to a question, but “the examination still proceeds; the testimony is taken subject to any objection . . . . A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2).
Rule 30(d)(3) states that during the deposition, a party or deponent may move to terminate or limit the deposition “on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Fed. R. Civ. P. 30(d)(3)(A). It also states that the Court may order that the deposition be terminated or limit its scope as provided in Rule 26(c).

Case 1:09-cv-00540-REB Document 195 Filed 01/06/15 Page 3 of 5
B. Discussion Defendants correctly accept their burden of demonstrating specific harm sufficient
to warrant a protective order. Def.’s Mem., p. 2 (Dkt. 193-1). Extending a deposition beyond the scope of questions that reasonably might lead to the discovery of admissible evidence can create an undue burden and expense.
Here, Plaintiffs agreed with respect to the City of Boise’s 30(b)(6) deposition to exclude information relating to the City’s programs and initiatives aimed at combating homelessness. See Dkt. 194-3, p. 3; Dkt. 194-4, p. 4. Accordingly, it is appropriate to apply these same agreed-upon limits—on exploring the City of Boise’s efforts to combat homelessness—to the deposition of City of Boise employee AnaMarie Guiles.
However, with regard to the resources available to homeless individuals in Boise, the number of homeless people in Boise may be relevant to Plaintiffs’s claim that the City’s ordinance, and the manner in which Defendants’ enforce that ordinance, is unconstitutional because it punishes homeless persons based on their homelessness status, allegedly in violation of the Eighth Amendment of the United States Constitution. Rev. 2nd Amd. Compl., p. 22. Therefore, Plaintiffs may depose Ms. Guiles about her knowledge of (1) the number of homeless persons in Boise; (2) whether that number includes homeless individuals coming into Boise from surrounding areas: and (3) the capacity for City and other resources to shelter homeless individuals. These topics may provide information reasonably calculated to lead to the

Case 1:09-cv-00540-REB Document 195 Filed 01/06/15 Page 4 of 5
discovery of admissible evidence.1 Additionally, the City’s policy on neighborhood redevelopment may shed light on the manner in which the City has chosen to enforce ordinance at issue.
On the other hand, the following topics do not appear reasonably calculated to lead to the discovery of admissible evidence and are not appropriate areas of inquiry for the deposition: (1) the operation, management, and funding of the City of Boise’s 300 units of housing available for low to moderate income Boiseans; and (2) the operation, management, and funding of the City of Boise’s trust that administers home loans to low and moderate income Boiseans.
The Court is confident that Plaintiffs’ counsel will appropriately limit their inquiries into these areas to the extent necessary to discover relevant information and will not go further to seek information to be used only to embarrass or harass Defendants, in violation of the discovery rules.
1 The Court has already determined that the Second Amended Complaint “properly updates information related to the Plaintiffs' standing to bring their claims, adds statistics on Boise's homeless population, and references reports and other information about actions taken with regard to the homeless and enforcement of the challenged Ordinances.” Order, p. 11 (Dkt. 70). These proper revisions include allegations “related to Plaintiffs’ health, homeless status, additional ordinance violation citations that they may have received, statistics regarding Boise’s homeless population, the availability of shelter beds, and actions taken by the Boise Police Department and Boise City over the past four years regarding the Ordinances and the homeless population.” Id. To the extent the deposition questions are focused on these areas, and reasonably calculated to lead to the discovery of admissible evidence, the questions are within the scope of the discovery rules.

Case 1:09-cv-00540-REB Document 195 Filed 01/06/15 Page 5 of 5
C. Order For the reasons set forth above, IT IS HEREBY ORDERED that the (Dkt. 193) is
DENIED, in part and GRANTED in part, as set forth in more detail above. DATED: January 6, 2015
Honorable Ronald E. Bush U. S. Magistrate Judge

 
 Case 1:09-cv-00540-REB Document 276 Filed 08/06/15 Page 1 of 17

VANITA GUPTA Principal Deputy Assistant Attorney General Civil Rights Division United States Department of Justice
MARK KAPPELHOFF EVE HILL Deputy Assistant Attorney Generals Civil Rights Division
JUDY PRESTON Acting Chief Civil Rights Division Special Litigation Section
TIMOTHY MYGATT Special Litigation Counsel Civil Rights Division Special Litigation Section
SHARON BRETT (NY 5090279) Trial Attorney Civil Rights Division Special Litigation Section 950 Pennsylvania Ave NW Washington, DC 20530 Phone: (202) 353-1091 Email:Sharon.Brett@usdoj.gov

WENDY OLSON United States Attorney for the District of Idaho United States Department of Justice
CHIRAAG BAINS Senior Counsel to the Assistant Attorney General Civil Rights Division
Of Counsel: Lisa Foster Director Office for Access to Justice
Maha Jweied Deputy Director Office for Access to Justice
Robert Bullock (CA 219942) Senior Counsel Office for Access to Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Phone: (202) 514-5324 Email: Bob.Bullock@usdoj.gov
Attorneys for the United States of America

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

)

JANET F. BELL, et al.,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF BOISE, et al.,

)

)

Defendants.

)

_________________________________________ )

Civil Action No. 1:09-cv-540-REB Hon.
STATEMENT OF INTEREST OF THE UNITED STATES

Case 1:09-cv-00540-REB Document 276 Filed 08/06/15 Page 2 of 17
STATEMENT OF INTEREST OF THE UNITED STATES On any given night in the United States, half a million people are likely to be experiencing homelessness.1 Homeless individuals are a diverse population, including children,
families, veterans, and the elderly. The causes of homelessness are also varied. In recent years,
some people who were affected by the economic downturn and foreclosure crisis have become homeless.2 Some homeless individuals have serious and persistent physical or behavioral health
conditions that neither they nor the communities in which they live have sufficient services to accommodate. As a result, these individuals are unable to obtain permanent housing.3 Other
individuals are homeless because of circumstances beyond their control; they are victims of domestic violence and trafficking, or youth who are separated from their families.4 These
individuals must find space in a public shelter or sleep on the street.
For many homeless people, finding a safe and legal place to sleep can be difficult or even impossible. In many cities, shelters are unable to accommodate all who are homeless.5 In 2014,
42% of homeless individuals slept in unsheltered, public locations—under bridges, in cars, in parks, on the sidewalk, or in abandoned buildings.6
1 U.S. Dep’t of Hous. and Urban Dev., 2014 Annual Homeless Assessment Report (“2014 AHAR”) 1 (October 2014), available at https://www.hudexchange.info/resources/documents/2014-AHAR-Part1.pdf. The 2014 AHAR found that as of January 2014, 578,424 individuals in the United States were homeless on any given night.
2 See generally id. Nationally, 11% of all homeless adults are veterans. Id. at 40. 3 U.S. Interagency Council on Homelessness, Opening Doors: Federal Strategic Plan to Prevent and End Homelessness 6, 10-11 (2010), available at http://usich.gov/PDF/OpeningDoors_2010_FSPPreventEndHomeless.pdf. 4 There are approximately 45,205 unaccompanied homeless children in the United States. 2014 AHAR at 1. “Unaccompanied children and youth” is defined in the AHAR as a person under the age of 25 who is not a member of a family or a multi-child household. Id. at 32. 5 Id. 6 Id. at 14. In 2014 there were roughly 153,000 unsheltered homeless individuals nationwide on any given night. Id. STATEMENT OF INTEREST OF THE UNITED STATES – pg. 2

Case 1:09-cv-00540-REB Document 276 Filed 08/06/15 Page 3 of 17
In this case, Plaintiffs are homeless individuals who were convicted of violating certain
city ordinances that prohibit camping and sleeping in public outdoor places.7 They claim that the
City of Boise and the Boise Police Department’s (“BPD”) enforcement of these ordinances
against homeless individuals violates their constitutional rights because there is inadequate
shelter space available in Boise to accommodate the city’s homeless population. Plaintiffs argue
that criminalizing public sleeping in a city without adequate shelter space constitutes
criminalizing homelessness itself, in violation of the Eighth Amendment.8
The parties disagree about the appropriate framework for analyzing Plaintiffs’ claims.
Plaintiffs encourage the court to follow Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir.
2006) (vacated after settlement, 505 F.3d 1006 (9th Cir. 2007)), which held that enforcement of
anti-camping ordinances may violate the Eighth Amendment on nights where there is inadequate
7 See Revised Second Am. Compl. at 4-5, ECF No. 171. Plaintiffs in this case challenge the application of two Boise Municipal Code ordinances. The first ordinance, Boise City Code § 9-10-02, prohibits “us[ing] any of the streets, sidewalks, parks or public places as a camping place at any time, or to cause or permit any vehicle to remain in any of said places to the detriment of public travel or convenience.” The ordinance defines “camp” or “camping” to mean “the use of public property as a temporary or permanent place of dwelling, lodging or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn.” The second ordinance, § 6-01-05(A), prohibits “disorderly conduct,” which includes “[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof.”
8 Plaintiffs allege that BPD’s enforcement practices are unconstitutional because: 1) there is insufficient shelter space available to accommodate all who are homeless in Boise, Pls. Mem. in Supp. of Pls. Mot. for Summ. J. (“Pls. Mem.”), ECF No. 243-2, at 16-18; 2) there are restrictions on certain shelter beds that some homeless individuals are unable to meet, thereby preventing them from obtaining shelter space even when beds may be unoccupied, id. at 20; and 3) the BPD continues to enforce the anticamping and disorderly conduct ordinances when shelters are full and against those who do not qualify for the beds, either because BPD officers are insufficiently trained or they are unaware when shelters are full because of unreliable reporting from the shelters. Id. at 20-21. Defendants, on the other hand, contend that there has never been a time when a homeless individual was turned away from a shelter due to lack of space, and even if that were to occur, the BPD would not enforce the ordinances under such circumstances. Defs. Resp. in Opp’n to Pl. Mot. for Summ. J. (“Defs. Resp.”), ECF No. 257, at 7-10. The parties dispute whether individuals are being turned away from shelters for lack of space or inaccessibility to persons with disabilities. The parties also dispute whether the beds available in the Boise Rescue Mission, which is affiliated with a religious institution, should be counted in the total number of available beds for homeless individuals, as use of those beds may subject them to unwanted proselytizing. Pls. Mem. at 13-14. The United States takes no position on any of these disputes.
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 3

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shelter space available for all of a city’s homeless individuals. Pls. Mem. at 5. Defendants, on the other hand, assert that Plaintiffs’ reliance on Jones is “heavily misplaced, factually unsupported, and immaterial to this case.” Defs. Resp. at 7.
Because the summary judgment briefing in this case makes clear that there is a significant dispute between the parties on the applicability of Jones and conflicting lower court case law in this area, the United States files this Statement of Interest to make clear that the Jones framework is the appropriate legal framework for analyzing Plaintiffs’ Eighth Amendment claims. Under the Jones framework, the Court should consider whether conforming one’s conduct to the ordinance is possible for people who are homeless. If sufficient shelter space is unavailable because a) there are inadequate beds for the entire population, or b) there are restrictions on those beds that disqualify certain groups of homeless individuals (e.g., because of disability access or exceeding maximum stay requirements), then it would be impossible for some homeless individuals to comply with these ordinances. As set forth below, in those circumstances enforcement of the ordinances amounts to the criminalization of homelessness, in violation of the Eighth Amendment.
INTEREST OF THE UNITED STATES The United States has authority to file this Statement of Interest pursuant to 28 U.S.C § 517, which permits the Attorney General to attend to the interests of the United States in any case pending in a federal court.9 Pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”), the United States enforces the rights of individuals to be free from unconstitutional and abusive policing. The United States has used its
9 The full text of 28 U.S.C. § 517 is as follows: “The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.” STATEMENT OF INTEREST OF THE UNITED STATES – pg. 4

Case 1:09-cv-00540-REB Document 276 Filed 08/06/15 Page 5 of 17
authority under Section 14141 to investigate numerous jurisdictions for unconstitutional police practices.10
The United States also has a broad interest in ensuring that justice is applied fairly, regardless of wealth or status. In 2010, Attorney General Eric Holder launched the Office for Access to Justice (“ATJ”) at the Department of Justice to address the access-to-justice crisis in the criminal and civil justice systems. ATJ’s mission is to help the justice system deliver outcomes that are fair and accessible to all.11 ATJ works with other federal agencies on a range of programs and policies affecting low-income and vulnerable people—including agencies that work to prevent and end homelessness.
The United States also has an interest in breaking the cycle of poverty and criminalization. Numerous federal initiatives are tasked with reducing the criminalization of homelessness and promoting alternatives to incarceration that are more cost-effective, efficient, and fair. For example, the United States Interagency Council on Homelessness (“USICH”), composed of nineteen cabinet secretaries and agency heads, coordinates federal efforts to end homelessness. USICH was established through the Stewart B. McKinney Homeless Assistance Act in 1987 and was most recently reauthorized in 2009 with the passage of the Homeless Emergency Assistance and Rapid Transition to Housing Act. 42 U.S.C. § 11311 et seq.
In 2010, USICH and ATJ, with support from the Department of Housing and Urban Development (“HUD”), held a summit entitled Searching for Balance: Civic Engagement in
10 See, e.g., Letter from Jocelyn Samuels, Acting Ass’t Att’y Gen., to Hon. Richard J. Berry, Mayor of Albuquerque, N.M. (Apr. 10, 2014), available at http://www.justice.gov/crt/about/spl/documents/apd_findings_4-10-14.pdf; Letter from Thomas Perez, Ass’t Att’y Gen. to John Engen, Mayor of Missoula, Mont. (May 15, 2013), available at http://www.justice.gov/crt/about/spl/documents/missoulapdfind_5-15-13.pdf; Investigation of the New Orleans Police Dep’t, U.S. Dep’t of Justice, Civil Rights Division (Mar. 16, 2011), available at http://www.justice.gov/crt/about/spl/nopd_report.pdf.
11 See Office for Access to Justice, U.S. Dep’t of Justice, http://www.justice.gov/atj/ (last visited June 16, 2015). STATEMENT OF INTEREST OF THE UNITED STATES – pg. 5

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Communities Responding to Homelessness on the development of constructive alternatives to the criminalization of homelessness. A related report, Searching Out Solutions: Constructive Alternatives to Criminalization, explores themes raised at the summit.12 HUD also produced a guide, Reducing Homeless Populations’ Involvement in the Criminal Justice System, intended to raise awareness among law enforcement and service providers about available resources to serve homeless people, and those at risk of homelessness, who are involved in the criminal justice system.13
DISCUSSION The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667-68 (1977). Pursuant to that clause, the Supreme Court has held that laws that criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Court considered a state statute criminalizing not only the possession or use of narcotics, but also addiction. Noting that the statute made an addicted person “continuously guilty of this offense, whether or not he had ever used or possessed any narcotics within the State”—and further that addiction is a status “which may be contracted innocently or involuntarily,” given that “a person may even be a narcotics addict from the moment of his birth”—the Court found that the statute impermissibly criminalized the status of addiction and constituted cruel and unusual punishment. Id. at 666-67 & n.9.
12 U.S. Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to Criminalization (2012), available at http://usich.gov/resources/uploads/asset_library/RPT_SoS_March2012.pdf.
13 U.S. Dep’t of Justice, Reducing Homeless Populations’ Involvement in the Criminal Justice System (2012), available at http://www.justice.gov/sites/default/files/atj/legacy/2012/05/09/doj-resourceguide.pdf. STATEMENT OF INTEREST OF THE UNITED STATES – pg. 6

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Six years after Robinson, the Court addressed whether certain acts also may not be subject to punishment under the Eighth Amendment if they are unavoidable consequences of one’s status. In Powell v. Texas, 392 U.S. 514 (1968), the Court considered the constitutionality of a statute that criminalized public intoxication. A four-member plurality interpreted Robinson to prohibit only the criminalization of status and noted that the statute under consideration in Powell criminalized conduct—being intoxicated in public—rather than the status of alcohol addiction. The plurality declined to extend Robinson, citing concerns about federalism and a reluctance to create a “constitutional doctrine of criminal responsibility.” Id. at 534 (plurality opinion). Moreover, the plurality found that there was insufficient evidence to definitively say Mr. Powell was incapable of avoiding public intoxication. Id. at 521-25. The dissenting justices, on the other hand, found that the Eighth Amendment protects against criminalization of conduct that individuals are powerless to avoid, and that due to his alcoholism, Mr. Powell was powerless to avoid public drunkenness. Id. at 567 (dissenting opinion). The dissenters, therefore, would have reversed Mr. Powell’s conviction. Id. at 569-70.
Justice White provided the decisive fifth vote to uphold Mr. Powell’s conviction. Instead of joining the plurality opinion, in a separate concurrence he set forth a different interpretation of Robinson. Justice White did not rest his decision on the status-versus-conduct distinction raised by the plurality. Instead, Justice White considered the voluntariness, or volitional nature, of the conduct in question. See Powell, 392 U.S. at 548-51 (White, J., concurring in the judgment). Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment. Id. at 551.
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 7

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Notably for the present case, Justice White specifically contemplated the circumstances of individuals who are homeless. He explained that, “[f]or all practical purposes the public streets may be home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking.” Id. Justice White believed some alcoholics who are homeless could show that “resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible.” Id. For these individuals, the 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. Ultimately, Justice White sided with the plurality because Mr. Powell did not present evidence to show that he was incapable of avoiding public places while intoxicated. Id. at 552. However, Justice White’s concurrence articulated the narrowest grounds for the decision; accordingly, it is the only controlling precedent from Powell. See Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that the narrowest position controls when no rationale garners the votes of a majority of the Court).
Robinson and Powell have resulted in a division among courts on how to analyze claims regarding enforcement of anti-camping ordinances against homeless individuals. Because Powell did not produce a majority opinion on whether the Eighth Amendment prohibits only the criminalization of status or also the criminalization of involuntary conduct, it does not provide a binding test for how courts should analyze these issues. Some courts have adopted the plurality’s strict interpretation of Robinson, opining that the Eighth Amendment limits only the criminalization of status, not of conduct. See, e.g., Lehr v. City of Sacramento, 624 F. Supp. 2d. 1218 (E.D. Cal. 2009) (finding the Eighth Amendment inapplicable where a statute criminalizes conduct and not status). Others have considered the voluntariness of the conduct, and whether
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 8

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the conduct is inextricably linked to one’s status, such that punishing the conduct is indistinguishable from punishing the status. See, e.g., Jones, 444 F.3d 1118 (finding anticamping ordinance violated Eighth Amendment because it criminalized sleeping in public when homeless individuals had no other choice but to sleep in public, and therefore criminalized the status of homelessness itself); Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994), rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995) (same); Pottinger v. City of Miami, 810 F. Supp. 1551, 1563 (S.D. Fla. 1992) (same). Finally, some courts have avoided the debate altogether by deciding a case on factual grounds. See, e.g., Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000) (not deciding the legal issue of whether the Eighth Amendment reaches conduct that is inextricably linked to status because Orlando proved the voluntary nature of public sleeping by “present[ing] unrefuted evidence” that the city’s large homeless shelter “has never reached its maximum capacity and that no individual has been turned away because there was no space available or for failure to pay the one dollar nightly fee”); Allen v. City of Sacramento, 234 Cal. App. 4th 41, 59 (2015) (upholding an anti-camping ordinance because the plaintiffs failed to “allege why [they] had no shelter”).
The differing interpretations of Robinson and Powell have caused drastically different results for both individuals and the criminal justice system. In the mid-1990s, the United States twice filed briefs in appellate cases to help clarify the Eighth Amendment analysis for claims brought by individuals who were convicted of violating anti-camping ordinances. See Brief for the United States as Amicus Curiae, Joyce v. City and County of San Francisco, No. 95-16940 (9th Cir. Mar. 29, 1996); Brief for the United States as Amicus Curiae, Tobe v. City of Santa Ana, No. S03850 (Cal. June 9, 1994). In those briefs, the United States took the position—as it does here—that criminalizing sleeping in public when no shelter is available violates the Eighth
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 9

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Amendment by criminalizing status. In the twenty years since the United States last weighed in on this issue, courts’ analyses of these statutes have remained divergent.
Consistent with the position taken in its previous filings, the United States now urges this Court to adopt the reasoning of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006). Although the Ninth Circuit ultimately vacated its opinion in Jones—pursuant to a settlement agreement between the parties, 505 F.3d 1006 (9th Cir. 2007), not for any substantive reason— its logic remains instructive and persuasive.
The Jones court considered the enforcement of a Los Angeles ordinance prohibiting sitting, lying, or sleeping in public. There, like here, the court was asked to consider a statute that, on its face, criminalized conduct rather than status. Importantly, the plaintiffs in Jones presented evidence suggesting that there was an inadequate number of shelter beds available for homeless individuals, so many individuals had no choice but to sleep in public in violation of the city’s ordinance. See Jones, 444 F.3d at 1137.
The Jones court found enforcement of the ordinance to be unconstitutional as applied to the plaintiffs because of inadequate shelter space. The court based its decision on its conclusion that, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Id. at 1136. Because sleeping is unavoidable, the court then considered whether the plaintiffs had a choice to sleep somewhere other than in public, concluding that they did not: “for homeless individuals in [Los Angeles’] Skid Row who have no access to private spaces, these acts can only be done in public.” Id. at 1136. As a result, the court found that sleeping in public is “involuntary and inseparable from” an individual’s status or condition of being homeless when no shelter space is available. Id. at 1132. The court
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 10

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concluded that, under those circumstances, “by criminalizing sitting, lying, and sleeping, the City [of Los Angeles] is in fact criminalizing [Plaintiffs’] status as homeless individuals.” Id. at 1137.
Defendants assert that reliance on Jones would be “misplaced, factually unsupported, and immaterial to this case.” Def. Rep. at 7. In advocating against the applicability of Jones, Defendants rely on a conduct-versus-status distinction that does not withstand close scrutiny. Id. (stating that the Boise ordinances “avoid criminalizing status by making conduct an element of the crime”). However, Defendants’ position is unpersuasive because the Eighth Amendment analysis is not limited to a reading of the plain language of the statute in question. Rather, the practical implications of enforcing the statute’s language are equally important. Those implications are clear where there is insufficient shelter space to accommodate the homeless population: the conduct of sleeping in a public place is indistinguishable from the status of homelessness.
Supreme Court precedent suggests as much. As the Jones court correctly noted, Powell is best read as providing support for Plaintiffs’ argument against the criminalization of involuntary sleeping in public, not as posing a barrier to that position. Indeed, five members of the Powell Court (Justice White and the four dissenting Justices) believed that punishing truly involuntary or unavoidable conduct resulting from status would violate the Eighth Amendment; only four Justices would have held otherwise. Jones, 444 F.3d at 1135.
It should be uncontroversial that punishing conduct that is a “universal and unavoidable consequence[] of being human” violates the Eighth Amendment. See id. at 1136. It is a “foregone conclusion that human life requires certain acts, among them . . . sleeping.” Johnson, 860 F. Supp. at 350. As the Jones court noted, it is impossible for individuals to avoid “sitting, lying, and sleeping for days, weeks, or months at a time . . . as if human beings could remain in
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 11

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perpetual motion.” Jones, 444 F.3d at 1136. Once an individual becomes homeless, by virtue of this status certain life necessities (such as sleeping) that would otherwise be performed in private must now be performed in public. Pottinger, 810 F. Supp. at 1564; see also Johnson, 860 F. Supp. at 350 (“they must be in public” and “they must sleep”). Therefore, sleeping in public is precisely the type of “universal and unavoidable” conduct that is necessary for human survival for homeless individuals who lack access to shelter space. Id.
In this way, the Boise anti-camping and disorderly conduct ordinances are akin to the ordinance at issue in Robinson, at least on nights when homeless individuals are—for whatever non-volitional reason(s)—unable to secure shelter space.14 When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless. See id. at 1136-37.
Adopting the Jones court’s approach would not implicate the knotty concerns raised by the Powell plurality and cited by the district courts that depart from Jones. In Powell, the plurality was concerned with the Cruel and Unusual Punishments Clause becoming “the ultimate arbiter of the standards of criminal responsibility.” 392 U.S. at 533; see also Joyce v. City & Cnty. of San Francisco, 846 F. Supp. 843, 857 (N.D. Cal. 1994); Lehr, 624 F. Supp. 2d at
14 In Powell, Justice White noted that he may have held differently on the merits if there was evidence presented that Mr. Powell was unable to avoid drinking in public; the availability of alternative venues in which Mr. Powell could drink was essential to Justice White’s concurrence in the judgment. See Powell, 392 U.S. at 553. STATEMENT OF INTEREST OF THE UNITED STATES – pg. 12

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1231.15 The Justices in the Powell plurality declined to extend the Eighth Amendment
prohibition to the punishment of involuntary conduct because they feared doing so would allow
violent defendants to argue that their conduct was “compelled” by any number of “conditions.”
Powell, 392 U.S. at 534 (expressing concern that a hypothetical murderer could claim a
compulsion to kill). The plurality was reluctant to “defin[e] some sort of insanity test in
constitutional terms.” Id. at 536.
But these concerns are not at issue when, as here, they are applied to conduct that is
essential to human life and wholly innocent, such as sleeping. No inquiry is required to
determine whether a person is compelled to sleep; we know that no one can stay awake
indefinitely. Thus, the Court need not constitutionalize a general compulsion defense to resolve
this case; it need only hold that the Eighth Amendment outlaws the punishment of unavoidable
conduct that we know to be universal. Moreover, unlike the hypothetical hard cases that
concerned the Powell plurality, the conduct at issue in the instant case is entirely innocent. Its
punishment would serve no retributive purpose, or any other legitimate purpose. As the plurality
in Powell itself noted, “the entire thrust of Robinson’s interpretation of the Cruel and Unusual
15 In Lehr, the district court declined to follow the Ninth Circuit’s decision in Jones in evaluating the plaintiffs’ Eighth Amendment as-applied claims regarding the City of Sacramento’s anti-camping ordinance. Despite evidence that the population of homeless individuals in Sacramento far outnumbered the available shelter beds, the court decided to follow the plurality opinion in Powell and the dissent from Jones because there was no precedential opinion in place, and it found the Jones dissent “to be the more persuasive and well-reasoned opinion.” Lehr, 624 F. Supp. 2d at 1231. For the reasons discussed above, the United States disagrees with Lehr and urges this Court to reject its analysis. The rationale in Joyce is equally unpersuasive. In Joyce, a pre-Jones district court decision, the court rejected the relevance of whether the City of San Francisco provided enough beds for homeless individuals. Rather than consider how and when the city enforced its state and local laws prohibiting camping and sleeping in public places, the court looked only at the language of the statute itself and concluded that it addressed only “acts” that derive from a person’s status, and not the status itself. Joyce, 846 F. Supp. at 857 (N.D. Cal. 1994). The Joyce court therefore declined to grant the plaintiffs’ motion for a preliminary injunction. However, while the plaintiffs’ appeal was pending before the Ninth Circuit, the City of San Francisco suspended, and eventually eliminated, enforcement of the challenged laws, issuing a memorandum affirming the rights of all homeless individuals. See Joyce v. City and Cnty. of San Francisco, No. 95-16940, 1996 WL 329317 (9th Cir. June 14, 1996). STATEMENT OF INTEREST OF THE UNITED STATES – pg. 13

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Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act [or] has engaged in some behavior which society has an interest in preventing.” Powell, 392 U.S. at 533 (emphasis added).
Using this reasoning, the vital question for the Court becomes: Given the current homeless population and available shelter space in Boise, as well as any restrictions on those shelter beds, are homeless individuals in Boise capable of conforming the necessary life activity of sleeping to the current law? If not, enforcing the anti-camping ordinances and criminalizing sleeping in public violates the Eighth Amendment, because it is no different from criminalizing homelessness itself. The Jones framework, developed from analyses of earlier cases, makes it clear that punishing homeless people for “acts they are forced to perform in public effectively punishes them for being homeless.” Pottinger, 810 F. Supp. 1551, 1564; see also Jones, 444 F.3d at 1136-37; Johnson, 860 F. Supp. at 350.
The realities facing homeless individuals each day support this application of the Eighth Amendment. Homelessness across the United States remains a pervasive problem. As the Jones court observed, “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.” Jones, 444 F.3d at 1137. Regardless of the causes of homelessness, individuals remain homeless involuntarily, including children, families, veterans, and individuals with physical and mental health disabilities. Communities nationwide are suffering from a shortage of affordable housing. And, in many jurisdictions, emergency and temporary shelter systems are already underfunded and overcrowded. For example, the 2010 Hunger and Homelessness Survey conducted by the
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 14

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U.S. Conference of Mayors found that 64% of cities reported having to turn people away from their shelters.16
At least one of the Justices in Robinson was concerned with how criminalizing certain conditions (there, addiction to narcotics) may interfere with necessary treatment and services that could potentially improve or alleviate the condition. See Robinson, 370 U.S. at 673-75 (Douglas, J., concurring). Those concerns are equally applicable in this context. Criminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness. As noted by the U.S. Interagency Council on Homelessness, “[r]ather than helping people to regain housing, obtain employment, or access needed treatment and service, criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”17 Issuing citations for public sleeping forces individuals into the criminal justice system and creates additional obstacles to overcoming homelessness. Criminal records can create barriers to employment and participation in permanent, supportive housing programs.18 Convictions under these municipal ordinances can also lead to lengthy jail sentences based on the ordinance violation itself, or the inability to pay fines and fees associated with the ordinance violation. Incarceration, in turn, has a profound effect on these individuals’
16 U.S. Conference of Mayors, 2010 Hunger and Homelessness Survey (2010), available at http://www.usmayors.org/pressreleases/uploads/2010_Hunger-Homelessness_Reportfinal%20Dec%2021%202010.pdf (cited in Searching out Solutions: Constructive Alternatives to Criminalization, supra note 12 at 7).
17 Searching out Solutions: Constructive Alternatives to Criminalization, supra note 12 at 7. 18 The Federal Interagency Reentry Council, established by Attorney General Eric Holder in January 2011, is working to coordinate efforts to remove these barriers at the federal level, so that individuals are able to move past their criminal convictions and compete for jobs, attain stable housing, support their children and families, and contribute to their communities. See Federal Interagency Reentry Council, Overview (May 2014), available at http://csgjusticecenter.org/wpcontent/uploads/2014/05/FIRC_Overview.pdf. STATEMENT OF INTEREST OF THE UNITED STATES – pg. 15

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lives.19 Finally, pursuing charges against individuals for sleeping in public imposes further burdens on scarce public defender, judicial, and carceral resources. Thus, criminalizing homelessness is both unconstitutional and misguided public policy, leading to worse outcomes for people who are homeless and for their communities.
CONCLUSION For the reasons stated above, the Court should adopt the analysis in Jones to evaluate Boise’s anti-camping and disorderly conduct ordinances as applied to Plaintiffs in this case. If the Court finds that it is impossible for homeless individuals to secure shelter space on some nights because no beds are available, no shelter meets their disability needs, or they have exceeded the maximum stay limitations, then the Court should also find that enforcement of the ordinances under those circumstances criminalizes the status of being homeless and violates the Eighth Amendment to the Constitution. Submitted this 6th day of August, 2015.
s/ Sharon Brett Sharon Brett Attorney for the United States of America
19 See Nat’l Law Ctr.on Homelessness & Poverty, No Safe Place: The Criminalization of Homelessness in U.S. Cities 32-33 (2014), available at http://www.nlchp.org/documents/No_Safe_Place. STATEMENT OF INTEREST OF THE UNITED STATES – pg. 16

Case 1:09-cv-00540-REB Document 276 Filed 08/06/15 Page 17 of 17 CERTIFICATE OF SERVICE
I hereby certify that on August 6, 2015, I served the foregoing via the Court’s CM/ECF system, which will automatically provide notice to all counsel of record.
/s/ Sharon Brett SHARON BRETT Trial Attorney United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, DC 20530 (202) 353-1091
STATEMENT OF INTEREST OF THE UNITED STATES – pg. 17

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JANET F. BELL; BRIAN S. CARSON; ROBERT MARTIN; LAWRENCE LEE SMITH; ROBERT ANDERSON; PAMELA S. HAWKES; JAMES M. GODFREY; BASIL E. HUMPHREY,
Plaintiffs-Appellants,

No. 11-35674
D.C. No. 1:09-cv-00540-
REB

v.

OPINION

CITY OF BOISE; BOISE POLICE DEPARTMENT; MICHAEL MASTERSON, in his official capacity as Chief of Police,
Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
Argued and Submitted August 7, 2012—Seattle, Washington
Filed March 7, 2013

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2

BELL V. CITY OF BOISE

Before: Susan H. Black,* Susan P. Graber, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Black

SUMMARY**

Civil Rights
The panel reversed the district court’s summary judgment and remanded in this 42 U.S.C. § 1983 action in which plaintiffs, who either are or have been homeless, alleged that police officers enforced two local camping and sleeping ordinances against them, in violation of the Eighth Amendment.
Plaintiffs contended that defendants’ policy, custom, and practice of enforcing these ordinances had the effect of criminalizing homelessness and constituted cruel and unusual punishment. The panel reversed the dismissal of plaintiffs’ claims for retrospective relief, determining that those claims were not barred by the Rooker-Feldman doctrine. The panel held that although plaintiffs sought relief designed to remedy injuries suffered from a state court judgment, they did not allege that the state court committed legal error, nor did they seek relief from the state court judgment itself. Rather,

* The Honorable Susan H. Black, United States Senior Circuit Judge for the Eleventh Circuit, sitting by designation.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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BELL V. CITY OF BOISE

3

plaintiffs asserted as a legal wrong an allegedly illegal act by an adverse party: the City’s allegedly unconstitutional enforcement of the ordinances.

The panel also reversed the dismissal of plaintiffs’ claims for prospective relief because those claims had not been mooted by defendants’ voluntary conduct. In reversing, the panel did not reach the merits of plaintiffs’ Eighth Amendment claims. Rather, the panel held that jurisdiction existed as to plaintiffs’ Eighth Amendment claims and remanded for a consideration of the merits in the first instance.

COUNSEL
Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise, Idaho, for Plaintiffs-Appellants.
Scott B. Muir, Assistant City Attorney, Boise City Attorney’s Office, Boise, Idaho, for Defendants-Appellees.

OPINION
BLACK, Circuit Judge:
Plaintiffs appeal the court’s1 order granting summary judgment to Defendants City of Boise, Boise Police Department, and Michael Masterson in his official capacity
1 The parties consented to proceeding before a magistrate judge in accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73.

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4

BELL V. CITY OF BOISE

as Chief of Police. Plaintiffs’ amended complaint, brought pursuant to 42 U.S.C. § 1983, alleged Defendants enforced two local ordinances in violation of the Eighth Amendment to the Constitution. The court held the Rooker-Feldman2 doctrine deprived it of subject matter jurisdiction over Plaintiffs’ claims for retrospective relief. The court also found Plaintiffs’ claims for prospective injunctive and declaratory relief “largely moot” because the City of Boise amended one ordinance and the Chief of Police issued an internal policy regarding the enforcement of both ordinances.

We reverse the dismissal of Plaintiffs’ claims for retrospective relief because those claims are not barred by the Rooker-Feldman doctrine. We also reverse the dismissal of Plaintiffs’ claims for prospective relief because those claims have not been mooted by Defendants’ voluntary conduct. In reversing, we do not reach the merits of Plaintiffs’ Eighth Amendment challenges. Rather, we hold that jurisdiction exists as to Plaintiffs’ Eighth Amendment claims and remand for a consideration of the merits in the first instance.

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs Robert Anderson, Janet Bell, Brian Carson, Pamela Hawkes, Basil Humphrey, Robert Martin, and Lawrence Lee Smith are individuals who either are or have been homeless in Boise. Plaintiffs have all been cited or

2 See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923).

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BELL V. CITY OF BOISE

5

arrested for violating one or both of the local ordinances at issue on appeal.3

Between 2006 and 2009, Plaintiffs Anderson, Bell, Hawkes, Humphrey, Martin, and Smith were cited or arrested for violating Boise City Code § 9-10-02 (1993) (the Camping Ordinance). During that period, the Camping Ordinance provided:

It shall be unlawful for any person to use any of the streets, sidewalks, parks or public places as a camping place at any time . . . provided that this section shall not prohibit the operation of a sidewalk café pursuant to a permit issued by the City Clerk.

Boise City Code § 9-10-02 (1993). Violation of the Camping
Ordinance was (and is) a misdemeanor. Boise City Code § 910-20.4

Between 2007 and 2009, Plaintiffs Carson, Hawkes, and Martin were cited for violating Boise City Code § 6-01-05(A)

3 On the record before us, there is nothing to support the allegation that Plaintiff James Godfrey was cited or arrested for a violation of the local ordinances at issue on appeal. Thus, any injury suffered by Godfrey cannot be linked to the challenged actions of Defendants, and Godfrey therefore lacks standing to seek relief. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 733, 128 S. Ct. 2759, 2768 (2008) (“To qualify for standing, a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be redressed by a favorable ruling.”). Accordingly, we affirm the dismissal of all claims as to Godfrey.
4 The Boise City Code is available at: http://cityclerk.cityofboise.org/ city-code/.

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6

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(the Sleeping Ordinance). The Sleeping Ordinance criminalizes as a misdemeanor “disorderly conduct,” which includes “[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof.” Boise City Code § 6-0105(A).

On June 28, 2010, Plaintiffs filed an amended complaint challenging the Camping and Sleeping Ordinances (collectively, the Ordinances) and seeking relief pursuant to 42 U.S.C. § 1983. Plaintiffs’ amended complaint alleged that Defendants used the Ordinances “to cite and arrest individuals who cannot avoid violating these laws because they are homeless.” Plaintiffs contended that Defendants’ policy, custom, and practice in enforcing these ordinances “has the effect of ‘criminalizing’ homelessness” and constitutes “cruel and unusual punishment in violation of Plaintiffs’ well established rights under the Eighth Amendment.” Plaintiffs sought declaratory and injunctive relief to enjoin enforcement of the Ordinances. Plaintiffs also sought an order (1) “compelling the City of Boise authorities to seek expungement of the records of any homeless individuals unlawfully cited or arrested” under the Ordinances, and (2) requiring the reimbursement of any criminal fines or costs of incarceration paid by homeless individuals as a result of unlawful citations and arrests. Plaintiffs further sought an “[a]ward of damages according to proof.”

Central to Plaintiffs’ claims is the alleged unavailability of overnight space in Boise’s homeless shelters. Three primary homeless shelters operate in Boise. Boise Rescue Mission (BRM) operates two of the shelters—City Light for

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Women and Children (City Light) and River of Life. During the summer, both BRM shelters restrict the length of time a person may stay without participating in certain programs. City Light provides shelter for women and children, while River of Life provides shelter for men. Interfaith Sanctuary (Sanctuary) operates the third shelter. Sanctuary cannot guarantee shelter for every person who requests it, and frequently turns away people when full. However, Sanctuary employs a reservation system for those who have stayed the prior evening. People who stayed the previous night are guaranteed the same beds, provided they “show up by 9:00 pm or make special arrangements.” Otherwise, the beds are given to those on the wait list. Sanctuary does not appear to restrict a person’s length of stay, given that Plaintiff Anderson spent three years living at Sanctuary.

On November 10, 2009, after this litigation had commenced,5 the City amended the Camping Ordinance by
adding a definition of “camp” and “camping”:

The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at anytime between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with

5 Plaintiffs’ original complaint was filed on October 22, 2009.

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one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping).

Boise City Code § 9-10-02 (2009).

No changes were made to the Sleeping Ordinance. However, the Boise Police Department’s Chief of Police issued a “Special Order,” with instructions to post the order in the 2009 Policy Manual accompanied by a handwritten note that the policy regarding enforcement of the Ordinances “is modified by Special Order 10-03, effective at 0001 hours on January 1, 2010.” The Special Order is not referenced or incorporated into the Ordinances. Although the record is vague as to exactly how the Special Order was created, it is clear from the record that the Chief of Police has the exclusive authority to establish policy for the Boise Police Department.

The Special Order prohibits officers from enforcing the Camping and Sleeping Ordinances when a person is on public property and there is no available overnight shelter. The Special Order defines “available overnight shelter” as “a public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness at no charge. To qualify as available, the space must take into account sex, marital and familial status, and disabilities.” The Special Order further provides that, if an individual cannot use available space because of a disability or a shelter’s length-of-stay restrictions, the space should not be considered available. The space will be considered available if the individual cannot use the space “due to

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voluntary actions such as intoxication, drug use or unruly behavior.”

All three homeless shelters agreed to report voluntarily to Boise State University Dispatch on evenings they determined their shelters were “full.”6 Boise State University agreed to then send an e-mail to the Boise Police Department advising officers that a shelter had reported being full. No written agreement exists between Defendants and the shelters.

After extensive discovery, the amendment of the Camping Ordinance, and the adoption of the Special Order, the court granted Defendants’ motion for summary judgment. The court, citing Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007) (order), recognized that a legal basis existed for Plaintiffs’ Eighth Amendment challenge to the Ordinances.7 The court then concluded Plaintiffs’ Eighth Amendment claims for prospective relief were “mooted in part and otherwise fail as a matter of law.”

In analyzing Plaintiffs’ Eighth Amendment claims for prospective relief, the court distinguished between daytime

6 The Special Order does not define “full” or “full space capacity”; rather, these terms are used on the “Overnight Shelter Capacity Advisory Protocol” form.
7 The court noted that Jones was vacated as a result of a settlement agreement and thus not binding. However, it concluded the decision “shed light on the issue and how the Ninth Circuit might approach such challenges in the future.” As stated previously, we do not reach the merits of Plaintiffs’ Eighth Amendment challenges to the enforcement of the Ordinances. Likewise, we do not address the propriety of the Jones analysis.

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enforcement of the Sleeping Ordinance and nighttime enforcement of the Sleeping and Camping Ordinances. With respect to the daytime enforcement of the Sleeping Ordinance, it determined “the undisputed facts reflect that the homeless may sleep in the parks during the day (whether or not shelter space is available).” Accordingly, the court concluded the daytime aspect of Plaintiffs’ Eighth Amendment claims failed as a matter of law.

With respect to nighttime enforcement of both Ordinances, the court held that Plaintiffs’ Eighth Amendment claims for prospective relief were mooted by the adoption of the Special Order. The court reasoned that the adoption of the Special Order allowed the homeless to sleep in parks at night if shelter space was unavailable, which made it “no longer reasonable to expect that the Boise Police Department will enforce the . . . Ordinances against homeless people at night when shelter space is unavailable.” Accordingly, the court found that adoption of the Special Order mooted the nighttime enforcement aspect of Plaintiffs’ Eighth Amendment claims for prospective relief. The court noted that its “decision does not bar Plaintiffs from bringing a future action contending that Defendants are not following the policy set forth in the Special Order.”

The court also concluded that the Rooker-Feldman doctrine barred consideration of Plaintiffs’ claims for retrospective relief, including Plaintiffs’ request for an order compelling expungement of Plaintiffs’ criminal records and Plaintiffs’ request for damages. The court reasoned that because Plaintiffs’ requested relief was “designed to compensate Plaintiffs for the injuries occasioned by the statecourt judgments,” their retrospective claims “would serve as an end-run around the state court appellate process,” and

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“serve as a de facto appeal from the state court.” Further, Plaintiffs’ claims would have required the court “to review and reject [the] judgment in each Plaintiff’s [criminal] case.” Thus, the court found Rooker-Feldman prohibited examination of the merits of Plaintiffs’ retrospective claims.

The court granted summary judgment to Defendants on the remainder of Plaintiffs’ claims and dismissed the amended complaint. This timely appeal followed. Plaintiffs do not appeal the court’s decision that their Eighth Amendment claims concerning daytime enforcement of the Sleeping Ordinance failed as a matter of law. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137 n.13 (9th Cir. 2012) (noting that an appellant waives appeal of an issue not raised in an opening brief).8 Rather, Plaintiffs’ appeal focuses on the court’s findings with regard to mootness and the RookerFeldman doctrine.

STANDARD OF REVIEW

We review an application of the Rooker-Feldman doctrine de novo. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir. 2010). We also review de novo questions of Article III justiciability, including mootness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). Factual determinations underlying the district court’s decision are

8 The court also held that Plaintiffs’ right to travel claims failed as a matter of law, the Camping Ordinance was not unconstitutionally vague, the overbreadth doctrine did not apply outside the First Amendment context, and the Idaho constitutional claims failed for the same reasons as their federal counterparts. Plaintiffs have waived appeal of these issues by failing to challenge these rulings in their opening brief. See Tsao, 698 F.3d at 1137 n.13.

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reviewed for clear error. Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir. 2010).

DISCUSSION

We first discuss the court’s dismissal of Plaintiffs’ Eighth Amendment claims for retrospective relief under the RookerFeldman doctrine. We determine the Rooker-Feldman doctrine is inapplicable because Plaintiffs’ suit is not a forbidden de facto appeal. We then discuss the court’s dismissal of Plaintiffs’ Eighth Amendment claims for prospective relief on mootness grounds. We conclude Defendants have failed to meet their heavy burden of demonstrating that the Special Order eliminates all reasonable expectations of recurrence of the allegedly unconstitutional enforcement of the Ordinances. Because we hold that jurisdiction exists over Plaintiffs’ Eighth Amendment claims for retrospective and prospective relief, we remand for a consideration of the merits of these claims.9

A. Rooker-Feldman

The court dismissed Plaintiffs’ claims for retrospective relief under the Rooker-Feldman doctrine after finding those “requests for relief are designed to compensate Plaintiffs for the injuries occasioned by the state-court judgments.” On

9 As discussed earlier, the court concluded Plaintiffs’ Eighth Amendment claims for prospective relief concerning daytime enforcement of the Sleeping Ordinance failed as a matter of law. Plaintiffs failed to appeal this issue, thus, on remand, the court need only consider the merits of Plaintiffs’ Eighth Amendment claims concerning nighttime enforcement of the Ordinances. Our holding is limited to jurisdiction; nothing in this opinion should be construed as passing judgment on the merits of Plaintiffs’ claims.

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appeal, Plaintiffs contend the court incorrectly applied the Rooker-Feldman doctrine. We agree.

The Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment, and seeking federal court review and rejection of that judgment. Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289, 1297 (2011). To determine whether the Rooker-Feldman bar is applicable, a district court first must determine whether the action contains a forbidden de facto appeal of a state court decision. Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003).10 A de facto appeal exists when “a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment based on that decision.” Id. at 1164. In contrast, if “a federal plaintiff asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction.” Id. Thus, even if a plaintiff seeks relief from a state court judgment, such a suit is a forbidden de facto appeal only if the plaintiff also alleges a legal error by the state court. Maldonado v. Harris, 370 F.3d 945, 950 (9th Cir. 2004); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004) (“[A] plaintiff must seek not only to set aside a state court judgment; he or she must also allege a legal error by the state court as the basis for that relief.”).

If “a federal plaintiff seeks to bring a forbidden de facto appeal, . . . that federal plaintiff may not seek to litigate an issue that is ‘inextricably intertwined’ with the state court

10 The Supreme Court approved of Noel’s approach to Rooker-Feldman in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293, 125 S. Ct. 1517, 1527 (2005).

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judicial decision from which the forbidden de facto appeal is brought.” Noel, 341 F.3d at 1158. The “inextricably intertwined” language from Feldman is not a test to determine whether a claim is a de facto appeal, but is rather a second and distinct step in the Rooker-Feldman analysis. See id. Should the action not contain a forbidden de facto appeal, the Rooker-Feldman inquiry ends. See Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1030 (9th Cir. 2005).

The court erred by dismissing Plaintiffs’ claims for retrospective relief under the Rooker-Feldman doctrine. Although Plaintiffs sought relief designed to remedy injuries suffered from a state court judgment, they did not allege before the court that the state court committed legal error, nor did they seek relief from the state court judgment itself. Rather, Plaintiffs assert “as a legal wrong an allegedly illegal act . . . by an adverse party”—the City’s allegedly unconstitutional enforcement of the Ordinances. Noel, 341 F.3d at 1164. Without a direct challenge to a state court’s factual or legal conclusion, Plaintiffs’ suit is not a forbidden de facto appeal, and Rooker-Feldman is inapplicable. See Manufactured Home Cmtys., 420 F.3d at 1030 (“MHC’s complaint does not directly challenge a state court’s factual or legal conclusion. MHC’s complaint to the district court is, therefore, not a forbidden appeal under Rooker-Feldman.”); see also Maldonado, 370 F.3d at 950; Kougasian, 359 F.3d at 1140. We therefore reverse the dismissal of Plaintiffs’ claims for retrospective relief.11

11 On appeal, neither party argues whether preclusion principles apply. See Henrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007) (“Rooker-Feldman does not override or supplant issue and claim preclusion doctrines.”). Preclusion principles are not jurisdictional.

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B. Mootness

The court dismissed Plaintiffs’ claims for prospective relief as moot after concluding the Special Order was “sufficient to foreclose any reasonable expectation that the alleged illegal action will recur.” Specifically, the court found it was no longer reasonable to expect the Ordinances would be enforced against the homeless at night when shelter space was unavailable. On appeal, Plaintiffs argue the court failed to apply the stringent standard for evaluating whether a defendant’s voluntary cessation of a challenged practice renders a case moot. Defendants contend Plaintiffs’ claims have been mooted by the Special Order.12

Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 872 (9th Cir. 2005). We therefore decline to consider their application to this case.
The parties also fail to address the application of Heck v. Humphrey’s “favorable-termination” requirement. See 512 U.S. 477, 486–87, 114 S. Ct. 2364, 2372 (1994) (“We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” (footnote omitted)). The court may address this issue on remand to determine whether Plaintiffs have raised a “cognizable” § 1983 claim. Heck, 512 U.S. at 483, 114 S. Ct. at 2370.
12 Defendants also contend Plaintiffs’ claims have been mooted by the amended definition of “camping” in the Camping Ordinance. We disagree. Although the amended provision provides additional guidance for the public and police, and was subject to a more rigorous implementation process, it does not, standing alone, moot Plaintiffs’ request for prospective relief under the Eighth Amendment. Plaintiffs’ request for prospective relief under the Eighth Amendment rests on an

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“The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, __ U.S. __, 132 S. Ct. 2277, 2287 (2012); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708 (2000) (“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (internal quotation marks omitted)). The standard for determining whether a defendant’s voluntary conduct moots a case is “stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189, 120 S. Ct. at 708 (internal quotation marks omitted); see also White v. Lee, 227 F.3d 1214, 1242–44 (9th Cir. 2000). The “heavy burden” lies with the party asserting mootness to demonstrate that, after a voluntary cessation, “the challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, 528 U.S. at 189, 120 S. Ct. at 708 (internal quotation marks omitted). This heavy burden applies to a government

allegation that enforcement of the Camping Ordinance effectively criminalized their status as homeless individuals. Mere clarification of the Camping Ordinance does not address the central concerns of Plaintiffs’ Eighth Amendment claims. Thus, Defendants have failed to carry their heavy burden of demonstrating that “the challenged conduct cannot reasonably be expected to start up again.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708 (2000) (internal quotation marks omitted).

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entity that voluntarily ceases allegedly illegal conduct. White, 227 F.3d at 1243–44.13

The court’s mootness analysis relied upon our decision in Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir. 1994). Noatak, however, involved Alaska’s repeal of a challenged statute and was “not a case where a defendant voluntarily ceases challenged action in response to a lawsuit.” Id. at 1508, 1511. Noatak recognized the general principle that, “if a challenged law is repealed or expires, the case becomes moot.” Id. at 1510.

Noatak’s general principle narrowing the voluntary cessation exception is limited to “state legislative enactments that otherwise moot a controversy.” See Chem. Producers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006) (noting the voluntary cessation exception has been narrowed in these circumstances). For state legislative enactments, “‘[a] statutory change . . . is usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.’” Id. (quoting Noatak, 38 F.3d at 1510). By contrast, however, repeal or amendment of an ordinance by a local government or agency does not necessarily “deprive a federal court of its power to determine the legality of the practice.” Id. (internal quotation marks omitted).

We are not presented with a change to a state legislative enactment, nor are we presented with the repeal of the

13 Although we presume a government entity is acting in good faith when it changes its policy, see Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010), the government entity still must meet its heavy burden of proof, White, 227 F.3d at 1244.

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challenged Ordinances. Defendants rely on the adoption of the Special Order, which is not analogous to either a state or local legislative enactment. Generally speaking, a statute is “[a] law passed by a legislative body.” Black’s Law Dictionary 1542 (9th ed. 2009). Idaho’s statutes are codified in the Idaho Code, and the legislative power to enact the laws of the State is vested in a senate and house of representatives. Idaho Const. art. III § 1. The Idaho Constitution provides that “no bill shall become a law without the concurrence of a majority of the members present,” id. § 15, and the people of Idaho reserve “the power to approve or reject at the polls any act or measure passed by the legislature,” id. § 1.

Similarly, the City of Boise defines ordinances as “formal legislative acts of the Council [to be] used whenever the Council intends to pass a regulatory measure, especially when it provides a penalty for a violation.” City of Boise, http://cityclerk.cityofboise.org/city-code/ (last visited Dec. 18, 2012). The procedures for adopting an ordinance are outlined in the Idaho Code and “must be strictly followed.” Id. A majority vote of the city council is required to pass or adopt an ordinance, and the subject of the ordinance must be clearly expressed in the title. Idaho Code. § 50-902. The Idaho Code also imposes certain publication requirements before an ordinance may take effect. Idaho Code §§ 50-901, 50-901A.

The Special Order is not governed by any analogous procedures. Although policies in the Boise Police Department Policy Manual may be created by a “policy committee,” the Chief of Police has the ultimate, and exclusive, authority to “establish policy and to direct all actions of the Department and its employees.” See Masterson Dep. 27: 1–4, 28: 6-8, Aug. 12, 2010. The Special Order was

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issued by the Boise Police Department’s Chief of Police with instructions to post the order in the 2009 Policy Manual. Employees were then instructed to include a handwritten note that the policy regarding enforcement of the Ordinances “is modified by Special Order 10-03, effective at 0001 hours on January 1, 2010.” The record is vague as to exactly how the Special Order was created. We do not know what function, if any, the policy committee served in creating the Special Order. What we do know is that the Chief of Police, and only the Chief of Police, has the “authority to establish policy for the police department.” Masterson Dep. 28: 10–11.

The Special Order is an internal policy that purports to curb the discretion of officers to enforce the Ordinances when “[t]here is no available overnight shelter.” It is not a formal written enactment of a legislative body and thus was not subject to any procedures that would typically accompany the enactment of a law. Nor is the Special Order referenced or incorporated in the Ordinances.14 Even assuming Defendants have no intention to alter or abandon the Special Order, the ease with which the Chief of Police could do so counsels against a finding of mootness, as “a case is not easily mooted where the government is otherwise unconstrained should it later desire to reenact the provision.” Coral Constr. Co. v. King Cnty., 941 F.2d 910, 928 (9th Cir. 1991).

14 Nothing in this opinion should be construed as holding that merely referencing or incorporating the Special Order in the Ordinances would have rendered this case moot. As noted previously, the “near categorical rule of mootness” recognized in Noatak applies in cases of state statutory change, while “local government or administrative agency repeal or amendment” does not necessarily “deprive a federal court of its power to determine the legality of the practice.” Chem. Producers, 463 F.3d at 878 (internal quotation marks omitted).

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The Special Order is also distinguishable from the “entrenched” and “permanent” policy issued in White. 227 F.3d at 1243. In White, the Department of Housing and Urban Development (HUD) adopted a new policy in response to the plaintiffs’ allegations that HUD investigators violated their First Amendment rights. Id. at 1225. The new policy was designed to protect the First Amendment rights of parties subject to HUD investigations, and the policy was circulated in a memorandum, announced by press release, and incorporated into a field handbook. Id. at 1242. We found the policy change to be “permanent” based on the broad scope and unequivocal tone of the new policy. Id. at 1243. We also noted the new policy, which had been renewed on an annual basis and in place for more than five years, was “fully supportive of First Amendment rights,” “addresse[d] all of the objectionable measures that HUD officials took against the plaintiffs,” and “even confesse[d] that [plaintiffs’] case was the catalyst for the agency’s adoption of the new policy.” Id. & n.25. Based on these facts, we held HUD had met its heavy burden of proving the challenged conduct could not reasonably be expected to recur, such that the plaintiffs’ claims were mooted by the new policy. Id. at 1244.

Although White establishes that a policy change may be sufficient to meet the stringent standard for proving a case has been mooted by a defendant’s voluntary conduct, id. at 1243–44, the Special Order lacks the assurances present in White. Significantly, in White, the new policy addressed “all of the objectionable measures that HUD officials took against the plaintiffs.” Id. at 1243 (emphasis added). In contrast, the Special Order fails to fully address Plaintiffs’ allegations in their amended complaint with regard to Defendants’ nighttime enforcement of the Ordinances. Moreover, as discussed above, the authority to establish policy for the

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Boise Police Department is vested entirely in the Chief of Police, such that the new policy regarding enforcement of the Ordinances could be easily abandoned or altered in the future. Coral Constr. Co., 941 F.2d at 928. Simply put, Defendants have failed to establish with the clarity present in White that the new policy is the kind of permanent change that proves voluntary cessation.

On the record before us, we conclude the implementation of the Special Order is insufficient to moot Plaintiffs’ Eighth Amendment claims for prospective relief.15 Defendants have failed to meet their heavy burden to make it “absolutely clear that the allegedly wrongful behavior”—the alleged unconstitutional enforcement of the Ordinances—“could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189, 120 S. Ct. at 708 (internal quotation marks omitted); see also DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 963 n.1 (9th Cir. 1999) (adopting the reasoning of Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998), which concluded a changed policy was insufficient to moot a controversy because the policy, adopted after the commencement of the suit, was “'not implemented by statute

15 Defendants argue Plaintiffs are no longer homeless and therefore lack standing to seek injunctive or declaratory relief. Defendants are not entitled to summary judgment on this ground. To defeat a motion for summary judgment, Plaintiffs, as the party asserting federal court jurisdiction, “need not establish that they in fact have standing, but only that there is a genuine issue of material fact as to the standing elements.” Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002). Viewing the evidence in the light most favorable to the nonmovant, Plaintiffs have met this standard for purposes of their claims for prospective relief. On remand, the court may conduct further discovery on the standing issue for purposes of Plaintiffs’ injunctive and declaratory relief claims.

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or regulation and could be changed again'”); Gluth v. Kangas, 951 F.2d 1504, 1507 (9th Cir. 1991) (concluding a vague policy enacted during litigation did “not deprive the court of a justiciable controversy”).

CONCLUSION

We reverse the court’s dismissal of Plaintiffs’ claims for retrospective relief because those claims are not barred by the Rooker-Feldman doctrine. Further, we conclude jurisdiction exists as to Plaintiffs’ claims for prospective relief regarding the nighttime enforcement of the Ordinances. We remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

 
 Case 1:09-cv-00540-REB Document 171 Filed 07/31/14 Page 1 of 26 PUBLIC RECORD VERSION

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Eric S. Tars, # 94857 (PA) Jeremy Rosen, # 0145718 (FL) National Law Center on Homelessness & Poverty 2000 M Street, NW, Suite 210 Washington, DC 20036 (202) 638-2535│Phone (202) 628-2737│Fax
Marguerite M. Sullivan, # 497894 (DC) Rebecca Valentine, # 989607 (DC) Aziz Ahmad, # 1004817 (DC) Krysta C. Copeland, # 1009698 (DC) Jared A. Stark, # 1018372 (DC) Latham & Watkins LLP 555 Eleventh Street, NW, Suite 1000 Washington, DC 20004 (202) 637-2200│Phone (202) 637-2201│Fax
Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ROBERT MARTIN, LAWRENCE

) Case No. 1:09-CV-540-REB

LEE SMITH, ROBERT ANDERSON,

)

BASIL E. HUMPHREY, PAMELA S. HAWKES, ) REVISED SECOND AMENDED

and JANET F. BELL

) COMPLAINT FOR

) INJUNCTIVE AND

Plaintiffs,

) DECLARATORY RELIEF

v.

)

) Eighth Amendment;

CITY OF BOISE; BOISE POLICE

) 28 U.S.C. §§ 2201, 2202

DEPARTMENT; and MICHAEL MASTERSON, )

in his official capacity as Chief of Police,

)

)

Defendants

)

)

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COME NOW the Plaintiffs Robert Martin, Lawrence Lee Smith, Robert Anderson, Basil
E. Humphrey, Pamela S. Hawkes, and Janet F. Bell (hereinafter “Plaintiffs”), and for a cause of
action against the City of Boise, the Boise Police Department, and Chief of Police Michael Masterson (hereinafter “Defendants”), state and allege as follows:1
PRELIMINARY STATEMENT 1. In Boise, Idaho, thousands of people are homeless on any given night. Idaho
Housing & Finance Ass’n, Homelessness in Idaho 2013 Point-In-Time Count Report (2013).
Without accounting for any length of stay policies and religious participation requirements which
would exclude homeless persons from accessing area shelters, there are only beds for
approximately 460 people in area shelters. With the recent economic downturn, the homeless
population includes an increasing number of people who have become homeless for the first
time. Id. at 4. Shelters in Boise have to place people on mats in every available floor space
when they run out of beds and still do not have enough room to meet the need.
2. Those individuals who are not able to find a bed or floor mat in the shelters have
no choice but to sleep in the public places of Boise in violation of laws that prohibit “camping”
or sleeping in public places. Boise police officers routinely issue camping citations to persons
who are homeless for sleeping, sitting, or talking with friends in public places—activities non-
1 In its Memorandum Decision and Order on Defendants’ Second Motion for Summary Judgment, dated January 27, 2014, the Court requested that Plaintiffs file the Second Amended Complaint, finding that “it is appropriate for case management purposes to require Plaintiffs to file a second amended complaint stating only the claim that remains.” Order, Dkt. No. 152 at 31. In its Memorandum Decision and Order on Defendants’ Motion to Strike and Dismiss Portions of the Second Amended Complaint, dated July 16, 2014, the Court dismissed an additional claim for relief and certain allegations, and ordered Plaintiffs to file a revised second amended complaint removing all stricken matters. Order, Dkt. No. 170 at 12. In filing this Revised Second Amended Complaint, Plaintiffs are not waiving their rights to appeal the claims dismissed by the Court’s January 27, 2014 Order or July 16, 2014 Order.
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homeless persons have the freedom to engage in without fear of police interference. Boise police officers also issue disorderly conduct citations to persons who are homeless merely for sleeping in discrete public places. These citations lead to convictions and jail time, which make it more difficult for Boise’s homeless population to obtain and keep employment and long-term housing. Thus, they continue to sleep in public places despite the constant fear of being issued a citation or arrested by police.
3. This is an action brought by persons who are homeless and who are threatened with citation or arrest under two Boise Municipal Code ordinances: (1) § 9-10-02, which prohibits camping on streets, in parks, or in public places at any time; and (2) § 6-01-05(A), which prohibits sleeping in public as “disorderly conduct.” The Defendants have used these laws to cite and arrest individuals who cannot avoid violating these laws because they are homeless. In effect, Defendants have “criminalized” homelessness and these laws violate the requirements of the United States Constitution.
4. Plaintiffs bring this action for declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. Plaintiffs seek this relief to enjoin Defendants from enforcing Boise Municipal Code §§ 9-10-02 and 6-01-05(A), for sleeping or lying down in public and to declare those ordinances unconstitutional. JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 1367. Plaintiffs seek to vindicate rights established by the Eighth Amendment of the United States Constitution under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
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6. Venue in this action is proper in the District of Idaho under 28 U.S.C. § 1391(b),

as the Defendants are located in the District of Idaho and all the events and/or omissions giving

rise to the claims complained of herein have occurred or will occur in the District.

PARTIES

A. Plaintiffs

7. Upon information and belief, Plaintiff ROBERT WILLIAM MARTIN is a

homeless individual who lives in Boise. Upon information and belief, he has been homeless on

and off since he was eighteen years old.

REDACTED

In the past, he stayed at the Interfaith Sanctuary shelter with his then-wife and small child, but Interfaith Sanctuary asked Martin and his family to leave because they had too many belongings, mostly consisting of items for their then-toddler. He tried to stay at the Boise Rescue Mission’s River of Life shelter but at one point was told not to return because his insomnia made it difficult for him to wake up at the time the shelter required. Martin received a camping citation on March 21, 2009. He was sleeping in the bushes near the I-84 highway not far from the shelter in which his wife and son were sleeping because he could not stay at any of the shelters in Boise that night. He told the Boise police officer who cited him that he was unable to stay at a shelter, but the officer issued a citation anyway. Martin pled guilty because he did not have the funds to hire an attorney and was afraid that challenging the citation would result in additional court costs and incarceration. Since he received his camping citation, officers have threatened Martin with more camping citations and cited him under other statutes for
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sleeping in public places. On April 24, 2009, Martin received a citation for disorderly conduct

merely for sleeping outside the Corpus Christi day shelter. Martin had been wandering around

all night looking for a place to sleep because he could not stay at any of the shelters. At four or

five in the morning he decided to sit down by Corpus Christi day shelter and wait for it to open at

7:00 a.m. He dozed off while waiting and received a citation as a result. On September 9, 2012,

Martin received a camping citation for sleeping outside the Interfaith Sanctuary shelter. Upon

information and belief, Martin pled guilty because he did not have the funds to hire an attorney

and was afraid that challenging the citation would result in additional court costs and

incarceration. Because Martin is homeless and lacks stable housing, he will be forced to sleep

outside on any evening when Boise’s shelters are full or otherwise unavailable to him.

8. Upon information and belief, Plaintiff LAWRENCE LEE SMITH was a homeless

Boise resident and is chronically homeless.

REDACTED

He

receives Social Security benefits, but nevertheless has found himself without funds sufficient to

continuously cover the cost of living and renting an apartment in Boise. For many years, he

lived in a camper van, but his van was towed and he lacked the funds needed to get it back. At

times he has slept along the Boise River and in other out-of-the-way areas in Boise. He has

stayed at Boise Rescue Mission shelter in the past; however, given the shelter’s limited resources

and overcrowding, Smith has never been able to sleep in a bed there. The few times he stayed at

Boise Rescue Mission, he had to sleep on a mat on the floor in n small room with four or five

other individuals. Boise Rescue Mission has turned him away for lack of space many times in

the past. Smith no longer attempts to stay at Boise Rescue Mission because the shelter’s

religious philosophy and activities requirements conflict with his religious beliefs. Smith has

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also been turned away from the Interfaith Sanctuary shelter for lack of space in the past. Smith received two camping citations from the same Boise police officer on April 28, 2007 and May 12, 2007 for setting up a tent in secluded areas near the river. Because he was sleeping deep in the woods and could not be observed from any public path, he believes that the officer sought him out to issue a camping citation. He was convicted and served ninety days incarceration for the first citation and ten days incarceration for the second citation. In addition, he missed one of his court appearances and was convicted of failing to appear. After he was arrested, he lost his tent, his stove, and his fishing equipment—all of which Smith needed to sustain himself in the absence of shelter. Upon information and belief, Smith fears that he will face additional citations that he cannot pay and/or arrest by Boise police officers on the nights when he has no choice but to sleep in public places of Boise.
9. Plaintiff ROBERT ANDERSON is a homeless Boise resident. REDACTED
However, he was homeless for over four years and found a more permanent living situation in a rental property in 2012. He and his wife recently received a notice of eviction because they have been unable to pay all of the monthly rent. If they are evicted, they will likely have difficulty finding new housing because of their bad credit record, the prior eviction, Anderson’s lack of income, and his significant debt. Anderson received a camping citation on September 1, 2007. He had been staying at the Boise Rescue Mission, but was forced to leave because of the shelter’s policy of allowing men to stay for only seventeen days unless they enroll in the shelter’s religious programming. He and some other men slept in the foothills, in an area they believed was outside of the Boise city limits. At approximately 8:00 a.m. the next morning, a Boise police officer found them and issued camping
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citations. Anderson believes that the officer specifically sought out homeless individuals to

whom he could issue citations. Anderson was convicted and served one day incarceration and

received a $25.00 fine which he could not afford to pay. Anderson fears that if he is evicted, he

will once again be forced to sleep outside and will receive additional citations and more fines

that he will not be able to pay.

10. Plaintiff BASIL E. HUMPHREY is a homeless Boise resident. He moved to

Idaho around 2005 to live with his daughter. She encouraged him to enroll in a biblically-based

alcoholism program at the Boise Rescue Mission. After he had difficulties staying sober he was

kicked out of the program and was unable to stay at the shelter. Humphrey had no place to go

and was forced to sleep outdoors for several months.

REDACTED

He received camping citations on August 2, 2007 and September 18, 2007, was convicted, and served three and two days’ time, respectively, for these citations. Because Humphrey is homeless and lacks stable housing, he will be forced to sleep outside on any night when Boise’s shelters are full or otherwise unavailable to him. He fears receiving additional citations and more fines that he will not be able to pay.
11. Plaintiff PAMELA S. HAWKES2 was a homeless Boise resident. She received eleven different camping citations from Boise police officers in 2006 and 2007. She also
2 Pamela S. Hawkes and Janet F. Bell remain in this case to preserve their right to appeal the Court’s Order of January 27, 2014 granting in part Defendant’s Motion for Summary Judgment and thereby dismissing Bell and Hawkes’ claims for damages under 42 U.S.C. § 1983. Dkt. No. 152. They do not assert claims for prospective relief. REVISED SECOND AMENDED COMPLAINT – Page 7

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received a disorderly conduct citation on July 24, 2007. These citations resulted in periods of

two to four days of incarceration per citation and fines. She often had no choice but to sleep in

public places because she could not find space in Boise shelters. She left Boise because she

feared that Boise police officers would continue to cite and arrest her pursuant to § 9-10-02, and

she did not have the ability to pay more criminal fines.

12. Plaintiff JANET F. BELL has resided in Boise since April 13, 2007, and for much

of that time was without shelter.

REDACTED

Because she has difficulty maintaining a traditional job, Bell has spent most of her life traveling and working short-term jobs to earn an income. Although space was occasionally available at the Boise Rescue Mission’s City Lights Home for Women and Children, Bell could not stay there because the Boise Rescue Mission’s religious philosophy and activities requirements conflict with her own religious beliefs and because the Boise Rescue Mission limits the length of stay for persons who do not enroll in their religious programming. Moreover, the Boise Rescue Mission would not allow Bell to stay with her then-fiancé because it prohibits couples from staying together in the same shelter facilities. Bell received two citations under § 9-10-02 for sleeping in parks and other public locations. On the morning of April 28, 2007, a Boise police officer approached Bell and another individual while they were sitting on a riverbank. Bell did not have a tent or bedroll at the time, only a backpack with some personal belongings, yet she still received a citation. On the second occasion, on May 22, 2007, Bell had just arrived in a secluded location where other homeless individuals slept and put down a bedroll when an officer arrived, wrote citations, and
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threatened to arrest the individuals if they did not leave immediately. Bell has been convicted twice under the statute and received a thirty-day suspended sentence. In addition to these two instances, there were several other occasions on which Boise police officers approached Bell and threatened to arrest her for napping or sitting with friends in secluded areas. She ultimately was forced to sleep in the bed of a pickup truck, outside the Boise city limits, because she feared that she would be cited and/or arrested by Boise police officers if she fell asleep in public places in Boise. She knew that another citation would result in the revocation of her suspended sentence and that she would be incarcerated. B. Defendants
13. Defendant CITY OF BOISE (hereinafter “City”) is a municipal corporation, organized under the laws of the State of Idaho, with the capacity to sue and be sued. The City is the legal and political governmental entity responsible for the actions of the Boise Police Department, its officials, agents, and employees. The City is sued in its own right and on the basis of the acts or omissions of its officials, agents, and employees who were following the City’s Ordinances and policies.
14. Defendant BOISE POLICE DEPARTMENT (hereinafter “Department”) is the municipal agency responsible for policing the City and for enforcement of Boise Municipal Code §§ 9-10-02 and 6-01-05(A)). The Department is sued in its own right and on the basis of the acts and omissions of its officials, agents, and employees who were following the City’s Ordinances and policies.
15. Defendant MICHAEL MASTERSON has been the Chief of Police since January 2005. As such, he is responsible for the administration and operation of the Department, and ultimately, for the enforcement of Boise Municipal Code §§ 9-10-02 and 6-01-05(A). Under his
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direction, Boise police officers have issued numerous citations to Plaintiffs for allegedly violating Sections 9-10-02 and 6-01-05(A) and have threatened Plaintiffs with citations and/or arrest. Chief Masterson is sued in his official capacity. FACTUAL ALLEGATIONS A. Provisions at Issue
16. Boise Municipal Code § 9-10-02 makes it a crime for any person “to use any of the streets, sidewalks, parks or public places as a camping place at any time.”3 The terms of this ordinance are broad, such that it covers sleeping or resting in any public place in Boise at any time of the day or night. Police officers have cited individuals for sitting and sleeping in public places throughout the City. The only exception in the statute to this complete ban is for the “operation of a sidewalk café.”
17. The Department does not maintain adequate written guidance or training materials regarding the enforcement of § 9-10-02. The Boise Community Ombudsman’s December 20, 2006 Special Report on Interactions Between the Boise Police Department and the Homeless (“Ombudsman’s Report”) recommended that the Boise Police Department create a written, binding protocol governing its officers’ interactions with homeless individuals. Ombudsman’s Report at 44. On information and belief, the Police Department never created such a protocol.

3

The statute defines “camp” or “camping” as “the use of public property as a temporary or

permanent place of dwelling, lodging, or residence, or as a living accommodation at any time

between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited

to, storage of personal belongings, using tents or other temporary structures of sleeping or

storage of personal belongings, carrying on cooking activities or making any fire in an

unauthorized area, or any of these activities in combination with one another or in combination

with either sleeping or making preparations to sleep (including the laying down of bedding for

the purpose of sleeping.”

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18. Defendants have a policy and custom of enforcing the statute broadly; the statute’s prohibition on camping amounts to a ban on sleeping, lying down, or sitting—basic necessities in life. The statute particularly targets persons who are homeless because they have to carry and possess their personal belongings at all times in violation of the statute and do not have the ability to store them due to their homeless status.
19. Boise Municipal Code § 6-01-05(A) criminalizes “occupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof” as “disorderly conduct.” This ordinance is also very broad in that it explicitly prohibits sleeping in any public place in Boise at any time of the day or night and, thus, explicitly bans a necessary function of life.
20. The Department adopted a Special Order, effective on January 1, 2010, that added section 2.15.00 to the Department Policy Manual, Enforcement of Camping/Sleeping Ordinance. The Special Order is an internal policy issued by Chief Masterson. The Special Order is not itself a city ordinance, nor is it referenced or incorporated into any city ordinances. Chief Masterson, or any person who holds the office of Chief of Police after him, has the sole authority to rescind or change the Special Order at any time.
21. The Special Order does not define “available overnight shelter,” “full” or “full space capacity.” The Special Order does not provide any guidance or training to officers on how to determine if a person cannot utilize shelter space because of a disability or if the person has exceeded the maximum allowable stay. It is not clear from the face of the Special Order what ordinances are affected by the Special Order.
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22. The Department also promulgated the Overnight Shelter Capacity Advisory Protocol as a means of implementing the Special Order. The one page protocol form is not referenced or incorporated into any city ordinance.
23. Under the Overnight Shelter Capacity Advisory Protocol, it is voluntary for shelters to report to the Department, through the Boise State University (“BSU”) dispatch, whether they are full. The Department does not monitor whether the shelters actually report their status or encourage them to do so. Police officers do not monitor to confirm whether or not the shelters are actually full on a given night. There have been times that shelters have been full and did not contact the BSU dispatch. The emails from BSU dispatch do not provide any information as to whether shelters are available to persons with specific disabilities or whether any particular person is permitted to stay at any shelter.
24. Officers are not required to check their email to determine whether the shelters have reported being full before issuing a citation. Officers cite individuals without checking on the status of the shelters. The Police Department instructed officers not to call the BSU dispatch or the shelters to ask if the shelters are full.
25. On information and belief, the City, through the Boise Police Department, Chief of Police, and police officers, aggressively and selectively enforces the anti-camping and disorderly conduct ordinances’ prohibitions on sleeping in public against homeless individuals in Boise in order to force these individuals to make the untenable choice between criminal convictions and leaving the City. On information and belief, the enforcement of these ordinances is part of a policy promoted by the City, the Boise Police Department, and Chief Masterson to “solve” the homelessness problem in Boise.
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26. In fact, the ordinances at issue in this case are not the only ordinances enacted by the City that are intended to, or have the effect of, targeting Boise’s homeless residents. In September 2013, the City of Boise adopted an ordinance barring persons from orally soliciting money or other things of value throughout the public areas of the city. Two homeless individuals who make their living soliciting on the streets of Boise, along with the ACLU of Idaho, successfully challenged the statute as violating the First Amendment to the U.S. Constitution. This Court enjoined the city from enacting certain portions of the ordinance and the City has since repealed the ordinance. Judgment, ACLU v. City of Boise, No. 1:13-cv-00478EJL (D. Idaho Feb. 10, 2014) (Dkt. No. 22). B. Homelessness in Boise
27. Federal law defines a “homeless individual” to include one who lacks a fixed, regular and adequate night-time residence, or one who resides in a shelter, transitional housing or a place not ordinarily used for sleeping accommodations, such as streets, automobiles, abandoned buildings, parks or other public spaces. Stewart B. McKinney Homeless Assistance Act of 1987 § 103(a), 42 U.S.C. § 11302(a) (2000). A homeless child is also an “individual[] who lack[s] a fixed, regular, and adequate nighttime residence.” 42 U.S.C. § 11434a(2)(A)(B)(i).
28. Private and public organizations in Boise track the number of homeless persons residing and receiving services in the city. The Boise School District reports that during the 2012-13 school year, 733 of its students were homeless. The other school districts in Ada County, Meridian and Kuna, report having 364 and 201 homeless students, respectively. Terry Reilly, a community based non-profit corporation dedicated to providing quality, comprehensive
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health care, served 1399 homeless patients at its clinic in Boise during the period April 2012 through March 2013. Terry Reilly, Annual Report Fiscal Year: April 2012 – March 2013 at 6.
29. Boise’s homeless population consists of single men and women, couples, and single- and two-parent families with children. An increasing number of Boise’s homeless individuals are military veterans who have returned to the United States after serving several tours of duty in Iraq and Afghanistan. Many homeless persons in Boise have difficulty maintaining employment because jobs are not available, they lack sufficient skills and education, and/or they have physical or mental disabilities.
30. Many people, even those who may be currently sheltered, are chronically homeless in Boise. “Chronically homeless” individuals are those who have been homeless for more than a year or who have had at least four episodes of homelessness in the last four years. See 24 C.F.R. § 91.5 (2011).
31. Between forty and seventy percent of homeless individuals in Boise suffer from alcohol or drug dependence and are either mentally ill or chronically homeless. These individuals have the most difficulty accessing and benefiting from the social service resources that are available.
32. These individuals also interact the most with the Boise Police Department. As the Ombudsman’s Report explained, “Police officers are not trained to perform social work functions; yet, persons experiencing homelessness often become the responsibility of law enforcement agencies because of the minor misdemeanors they commit.” Ombudsman’s Report at 2. This report indicated that members of the Boise Police Department were inadequately trained and prepared to deal with the problems of Boise’s homeless population, including mental illness, alcohol or dependence, and lack of shelter and other resources. Id. at 2, 22, 24-25, 44.
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C. Effect of Enforcement of Sections 9-10-02 and 6-01-05(A) 33. Repeat citations or convictions under §§ 9-10-02 and 6-01-05(A) for camping or
sleeping in public can have a detrimental effect on an individual’s health and his or her ability to find and continue employment, procure and maintain housing, and receive government assistance or benefits.
34. Defendants’ actions pose a health risk to the homeless population of Boise because the constant need to keep moving to avoid citations under these ordinances prevents these individuals from sleeping. Sleep is a physical and mental necessity for people to properly function. Lack of sleep causes disruptions in cognitive function and exacerbates a myriad of physical and mental health problems.
35. Homeless individuals like Plaintiffs typically cannot afford to pay the fines associated with violations of §§ 9-10-02 and 6-01-05(A). These individuals often do not have a permanent address or telephone, which makes it difficult for them to receive communications from the court. They also often lack reliable transportation. If they fail to appear in court, the court will issue a warrant for their arrest, which will result in additional time in jail and fines for failing to appear. If these fines are not paid, the homeless individual may be subject to a civil contempt order, which only worsens the situation. Incarceration is also disruptive and expensive. Periods of incarceration interrupt employment and social security disability benefits. Moreover, a homeless individual can be charged the costs for his or her incarceration.
36. Homeless individuals must disclose criminal convictions, even for minor infractions, on applications for public and private housing. These convictions become a matter of public record. As a result, the convictions may cause them to lose the opportunity to obtain permanent public and private housing. Additionally, an individual may lose a housing placement
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if he or she is incarcerated. Conviction and incarceration for camping or sleeping can also interfere with the ability to obtain and maintain Social Security disability benefits. Recipients may not receive benefits for any period in which they are incarcerated. In addition, those applying for benefits may miss crucial hearings or deadlines while incarcerated, delaying their receipt of much needed income and the ability to access medical care with Medicaid eligibility.
37. Likewise, individuals must disclose criminal convictions when they apply for employment, and even minor infractions may make a potential employer less likely to hire an applicant. Missing work due to required court appearances or because of periods of incarceration may lead to the loss of employment and income.
38. Defendants’ policy, custom and practice of issuing citations to, arresting, and harassing homeless individuals like Plaintiffs under §§ 9-10-02 and 6-01-05(A), under the circumstances alleged herein, has the effect of “criminalizing” homelessness. These measures do not accomplish any significant or legitimate public policy goal. Instead, they perpetuate the cycle of homelessness by decreasing opportunities for homeless individuals to find housing and gainful employment and take care of their health needs. “[T]he criminalization of homelessness does nothing to address the underlying causes of homelessness and often serves to exacerbate them. . . . It serves only to move people away from services and causes them to acquire a criminal record, thus making it even more difficult for them to obtain employment and housing.” Ombudsman’s Report at 5 (summarizing problems described in The National Coalition for the Homeless and The National Law Center on Homelessness & Poverty, A Dream Denied: The Criminalization of Homelessness in U.S. Cities (2006)).
39. The U.S. Interagency Council on Homelessness states, “[c]riminalization undermines real solutions.” Moreover, “[i]n addition to violating domestic law, criminalization
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measures may also violate international human rights law, specifically the Convention Against Torture and International Covenant on Civil and Political Rights.” U.S. Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness 7, 8 (2012). D. Availability of Shelter
40. In Boise, the need for shelter space far exceeds the availability of shelter space. On any given night there are thousands of homeless individuals in Boise, yet there are fewer than 460 year-round emergency shelter beds. On any given night in Boise, there are hundreds of people who will not be able to find safe and legal shelter.
41. Indeed, the City’s shelters are routinely full. In a January 2014 interview with Boise State Public Radio, Interfaith Sanctuary director Jayne Sorrels explained that the shelter serves 160 individuals a night and is at capacity most nights of the year, for the whole year. According to Sorrels, they frequently turn people away because there is no room. The Boise Rescue Mission’s City Light shelter is also full most nights. Both City Light and the Boise Rescue Missions’ other shelter, River of Life, are frequently forced to house additional persons on mats on the floor when they run out of beds.
42. Shelter spaces in Boise are frequently unavailable to certain subsets of the homeless population. The Women’s and Children’s Alliance provides emergency beds only for female victims of domestic violence and their children. The Idaho Youth Ranch provides emergency beds only for children who are part of the juvenile justice or child protection system. The other shelters allocate a certain number of beds for different groups, such as families, single women and single men. Boise Rescue Mission’s River of Life dedicates a certain number of beds to at-risk veterans, a certain number of beds to the shelter’s employment and year-long
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religious-based alcohol and substance abuse programs, and a certain number of beds to the shelter’s transitional housing programs. Minutes from the February 5, 2014 meeting of the Homeless Coalition indicated that the Interfaith Sanctuary was operating capacity in the men’s and women’s dorms.
43. Shelters also have restrictions that prevent certain homeless individuals from staying in them. The Boise Rescue Mission shelters do not allow couples to stay together, limit the length of time any one person can stay to a maximum of seventeen or thirty days during certain months after which they may not return for a period of thirty days, emphasize religious beliefs that may conflict with the beliefs and religious faith of individuals who need shelter, or have schedules that hamper individuals’ employment opportunities. The Boise Rescue Mission shelters that provide beds to women and children have an age cut-off for male children so that those children cannot stay with their mothers and instead must stay alone in the men’s shelter. The Boise Rescue Mission men’s shelter does not allow men with children. The Boise Rescue Mission shelters also permit registered sex offenders to reside in the same shelter.
44. Finally, some individuals who are eligible for assistance to secure permanent housing have to wait for long periods of time for such assistance or housing to become available, or cannot receive such assistance at all. Due to the large demand for rental assistance in the community and a limited amount of funding and federal budget cuts, the Boise City/Ada County Section 8 housing assistance waiting list closed on April 29, 2011 and is no longer accepting new applicants. The Boise City/Ada County Housing Authority reported that at the time the waiting list closed, the list had grown so long that the anticipated time to receive assistance would be four to five years from the date of application, depending on the federal funding received.
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45. Because of the lack of shelter space and the inability to obtain permanent housing, a large number of individuals who are homeless in Boise will remain so for the foreseeable future. E. Pattern of Enforcement
46. At all relevant times, Defendants and their agents acted under color of state law and within the scope of their employment.
47. The City of Boise, through its Police Department, and the Chief of Police maintain a policy, custom and practice of unlawfully enforcing §§ 9-10-02 and 6-01-05(A) against homeless individuals. The Ombudsman’s Report credits the “consistent effort and pressure” by the Boise Police Department for the elimination of permanent homeless camps: “Through solid effort and real pressure by the Boise Police Department, no established camps exist today along the Greenbelt. . . . At present, it might be possible to find one or two people in the parks at night; but there will be no established camps.” Ombudsman’s Report at 18-19.
48. The majority of camping citations are issued by officers in the Bike Patrol Unit who patrol the Greenbelt and Boise’s parks. The Boise Police Bike Patrol 2007 Annual Report (“Bike Patrol Report”) states that by changing the hours of deployment, officers in the Bike Patrol issued substantially more camping citations in 2007 than prior years and were “very successful in curbing the number of campers.” Bike Patrol Report at 17. In fact, in 2006 Bike Patrol Unit officers issued only 30 camping citations; in 2007, enforcement of the anti-camping ordinance increased significantly with these officers issuing 162 citations for camping. Id.
49. Defendants enforce Boise Municipal Code § 9-10-02 most between the months of April and September. Additionally, Defendants have given most citations between the hours of 5:30 and 8:30 a.m. when homeless individuals who have slept outside the night before wake up
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and prepare to leave the area. Boise police officers make a point of checking for homeless individuals first thing in the morning and have even opted to start shifts early in order to look for and cite homeless individuals for violating the camping and disorderly conduct ordinances. Boise police officers target outdoor areas where homeless individuals sleep.
50. In an internal police communication, one Boise Police Officer stated that he had “played cat and mouse” with a homeless individual one day so that he could issue a citation to him. Later, on three separate occasions, that same police officer told a BPD list serve that he “could not find a violation to save [his] life,” that he had “[n]o luck finding transient violators,” and that he “[s]talked a few transients with no success.”
51. The same Boise Police Officer estimated in 2010 that he had written 500 citations, and he described camp sweeps as his “special project.”
52. The harassment of Boise’s homeless population is not limited to citation or arrest under § 9-10-02. Boise police officers also issue disorderly conduct citations pursuant to § 6-0105(A) to homeless individuals sleeping in public places. Upon information and belief, the City of Boise, through its Police Department, and the Chief of Police, has expanded its enforcement tools as part of its policy, custom and practice of unlawfully arresting, citing, threatening to cite, or otherwise harassing homeless individuals who engage in sleeping, and other necessary activities of life, in public places.
53. Plaintiffs have each received citations and/or convictions, or threats of citations, for violations of Boise Municipal Code §§ 9-10-02 and/or 6-01-05(A) for sleeping or lying down in public. On information and belief, with knowledge that Plaintiffs were homeless and had no lawful place to sleep or rest within the City of Boise because of a chronic shortage of shelter beds, Boise police officers have issued citations, arrested, and/or threatened Plaintiffs in an effort
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to drive them and other homeless individuals out of the City of Boise. As a result, Plaintiffs often had to move constantly all night long, or sleep outside of the Boise city limits to avoid further harassment from police officers.
54. On information and belief, Chief of Police Masterson was aware that officers in the Boise Police Department unlawfully targeted Boise’s homeless population; cited, arrested, or threatened to cite or arrest Plaintiffs and other homeless individuals for sleeping in public; and either directed or condoned the behavior of his officers. The City’s Ombudsman’s Report and Police Department publications, such as the Bike Patrol Report, document the City’s policy, custom and practice of criminalizing homelessness and publicized the dramatic increase in camping citations in 2007 and the “success” of their enforcement efforts.
55. Local newspaper articles, the Ombudsman’s Report and Police Department publications publicized the Boise Police Department’s practice of issuing camping citations to homeless individuals who have no legal place to sleep or rest in Boise. Thus, City policymakers and other relevant individuals in positions of authority were aware of this practice and, at a minimum, knowingly permitted these actions by Boise police officers.
56. In addition, the City, its Police Department, and Chief Masterson, failed to exercise the proper supervision over Boise police officers’ interactions with homeless individuals and failed to train these officers in how to appropriately and lawfully enforce §§ 9-10-02 and 601-05(A). This policy of inadequate training and supervision constitutes deliberate indifference on the part of Defendants towards the rights of homeless individuals with whom the police come into contact.
57. Defendants’ policies and practices have caused Plaintiffs to suffer – and unless enjoined will continue to cause Plaintiffs to suffer – humiliation; psychological, physical, and
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emotional suffering; degradation, pain, and injury; financial loss; and loss of privacy and basic constitutional and human rights.
FIRST CLAIM FOR RELIEF Violation of Prohibition Against Cruel and Unusual Punishment
(Eighth Amendment; Declaratory Judgment) 1. Plaintiffs hereby incorporate all preceding paragraphs as if fully set forth herein. 2. Poverty, unemployment, untreated mental and physical illness, drug and alcohol dependence, and the City’s failure to provide adequate shelter space often forces Plaintiffs and other homeless individuals to sleep in public places in Boise. 3. Although Plaintiffs are homeless and have no way to comply with Boise Municipal Code §§ 9-10-02 and 6-01-05(A) because they must sleep outdoors, Defendants have cited, arrested, or threatened Plaintiffs for sitting, lying, or sleeping in public places in Boise. Defendants are punishing Plaintiffs and other homeless individuals based on their status as homeless persons. 4. Defendants’ actions that penalize Plaintiffs for their homeless status constitute cruel and unusual punishment in violation of Plaintiffs’ well-established rights under the Eighth Amendment of the United States Constitution as incorporated in, and applied to the states through, the Fourteenth Amendment. 5. Because the challenged ordinances violate the freedom from cruel and unusual punishment guaranteed by the Eighth Amendment to the United States Constitution, Plaintiffs are entitled under 28 U.S.C. §§ 2201-2202 to a declaratory judgment declaring that Boise Municipal Codes §§ 9-10-02 and 6-01-05(A) are unconstitutional, or in the alternative, only ever to be interpreted in particular ways prescribed by this Court, to be constitutional.
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PRAYER FOR RELIEF WHEREFORE, based on the allegations asserted herein, Plaintiffs respectfully request relief as follows: 1. A temporary restraining order and/or preliminary and permanent injunction, enjoining Defendants, their officers, employees, assignees, successors, and agents from enforcing Boise Municipal Code §§ 9-10-02 and 6-01-05(A), with respect to persons sleeping or lying down in public; 2. A declaration that Defendants’ present and threatened future actions violate Plaintiffs’ rights to be free from cruel and unusual punishment under the United States Constitution; 3. Plaintiffs’ fees and costs incurred in this lawsuit pursuant to 28 U.S.C. § 2202. 4. All such other relief as this Court deems just and proper.
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Respectfully submitted this 31st day of July, 2014.
/s/ Rebecca Valentine
Howard A. Belodoff, ISB # 2290 IDAHO LEGAL AID SERVICES, INC. 310 N. 5th Street P.O. Box 913 Boise, ID 83701 (208) 336-8980│Phone (208) 342-2561│Fax Eric S. Tars, # 94857 (PA) Jeremy Rosen, # 0145718 (FL) National Law Center on Homelessness & Poverty 2000 M Street, NW, Suite 210 Washington, DC 20036 (202) 638-2535│Phone (202) 628-2737│Fax Marguerite M. Sullivan, # 497894 (DC) Rebecca Valentine, # 989607 (DC) Aziz Ahmad, # 1004817 (DC) Krysta C. Copeland, # 1009698 (DC) Jared A. Stark, # 1018372 (DC) Latham & Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200│Phone (202) 637-2201│Fax Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I hereby certify that on the 31st day of July, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following persons:
Aziz Ahmad LATHAM & WATKINS LLP Email: aziz.ahmad@lw.com
Howard A. Belodoff IDAHO LEGAL AID SERVICES, INC. Email: howardbelodoff@idaholegalaid.org
Krysta C. Copeland LATHAM & WATKINS LLP Email: krysta.copeland@lw.com
Brady J. Hall MOORE & ELIA, LLP Email: brady@mbelaw.net
Kelley K. Fleming BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Michael W. Moore MOORE & ELIA, LLP Email: mike@mbelaw.net
Scott B. Muir BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Jeremy Rosen NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY Email: JRosen@nlchp.org
Jared A. Stark LATHAM & WATKINS LLP Email: jared.stark@lw.com
Marguerite M. Sullivan LATHAM & WATKINS LLP Email: maggy.sullivan@lw.com
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Eric S. Tars NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY Email: etars@nlchp.org
Rebecca Valentine LATHAM & WATKINS LLP Email: rebecca.valentine@lw.com

/s/ Rebecca Valentine

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 UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

JANET F. BELL, BRIAN S. CARSON, ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT ANDERSON, PAMELA S. HAWKES, JAMES M. GODFREY, and BASIL E. HUMPHREY,
Plaintiffs,
vs.

Case No. 1:09-cv-00540-REB
MEMORANDUM DECISION AND ORDER ON DEFENDANTS’ SECOND MOTION FOR SUMMARY JUDGMENT

CITY OF BOISE; BOISE POLICE DEPARTMENT; and MICHAEL MASTERSON, in his official capacity as Chief of Police,

Defendants.

Currently pending before the Court is Defendants’ Second Motion for Summary Judgment (Dkt. 141). The Court has carefully reviewed the record, considered oral arguments, and now enters the following Order granting, in part, and denying, in part, Defendants’ Motion.

MEMORANDUM DECISION AND ORDER - 1

SUMMARY OF THE DECISION The Plaintiffs are individuals who either are or were homeless in Boise and they allege that Defendants (Boise City and its Police Department) have criminalized the status of being homeless by the manner in which Defendants enforce Boise City ordinances1 prohibiting (as a practical matter) camping and sleeping in public. Defendants now seek summary judgment on Plaintiffs’ claim that Defendants’ enforcement actions violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In ruling on Defendants’ previous summary judgment motion, the Court dismissed Plaintiffs’ claims on jurisdictional and mootness grounds. Order (Dkt. 115). On Plaintiffs’ appeal from that decision, the United States Court of Appeals for the Ninth Circuit reversed this Court’s decision as to whether this federal court has jurisdiction to consider the claims, but did “not reach the merits of Plaintiffs’ Eighth Amendment challenges” on appeal. Bell v. City of Boise, 709 F.3d 890, 892-96 (9th Cir. 2013). This Court on remand also does not reach the underlying merits of Plaintiffs’ Eighth Amendment claims. Those claims are largely barred by the so-called “favorabletermination” requirement of Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States Supreme Court held that, “in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a . . . plaintiff must prove
1 The ordinances are Boise City Code Section 9-10-02 02 (the “Camping Ordinance”) and Boise City Code Section 6-01-05(A) (which prohibits disorderly conduct and is referred to throughout this order as the “Sleeping Ordinance”). MEMORANDUM DECISION AND ORDER - 2

that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87.
Plaintiffs could have raised their argument of Eighth Amendment unconstitutionality as a defense to their criminal prosecutions and on direct appeal. A decision in their favor on such claims in this case would necessarily imply the invalidity of their prior convictions or sentences. As a consequence, such claims cannot be prosecuted in this case under the holding in Heck. Accordingly, the Court will dismiss all claims for relief that seek expungement from Plaintiffs’ records of any camping and sleeping ordinance violations, reimbursement for any fines or incarceration costs, recovery of damages for the alleged civil rights violations, and any other claim or recovery that seeks relief for events that have already occurred and necessarily would imply the invalidity of Plaintiffs’ convictions.
The dismissal does not, however, extend to Plaintiffs’ request for a declaratory judgment under 28 U.S.C. §§ 2201 and 2202. That claim seeks prospective relief – i.e., a declaration stating that Defendants’ present and threatened future actions in enforcing the Ordinances violate Plaintiffs’ rights to be free from cruel and unusual punishment under the Eighth Amendment and the Idaho Constitution (Article I, § 6).2 Further, this claim is
2 Because Plaintiffs have not argued that the Idaho Constitution provides more extensive protection than does the Eighth Amendment to the U.S. Constitution, this decision refers to both the state and federal constitutional challenges as an Eighth Amendment challenge throughout. MEMORANDUM DECISION AND ORDER - 3

not precluded by the doctrine of res judicata, and it remains to be determined on the
merits. The Court will require, however, that Plaintiffs file an Amended Complaint
stating this claim more particularly and omitting any dismissed claims for relief.3
BACKGROUND4
In this lawsuit, Plaintiffs claim that Defendants enforce Boise City ordinances5 (the
“Ordinances”) regarding camping and sleeping in public against the homeless in Boise in
a manner that violates the Eighth Amendment’s prohibition against status crimes.
Plaintiffs are individuals who either are or were homeless in Boise. Each has been cited
3 For instance, regarding the Sleeping Ordinance, only nighttime enforcement remains at issue. See Bell, 709 F.3d at 896 (“Plaintiffs do not appeal the court’s decision that their Eighth Amendment claims concerning daytime enforcement of the Sleeping Ordinance failed as a matter of law.”). Additionally, the state constitutional claims are at issue only to the extent that their federal counterparts survive. See Bell v. City of Boise, 834 F.Supp.2d 1103, 1116 (D.Idaho 2011) (finding that “the state constitutional challenges fail for the same reasons the federal constitutional claims fail”); Bell, 709 F.3d at 896 n.8 (finding that, by not raising the issue in their opening brief, Plaintiffs had waived appeal of the district court’s dismissal of their Idaho constitutional claims for the same reasons as their federal counterparts).
4 The facts are set forth more fully in the Court’s prior Memorandum Decision and Order (Dkt. 115) and the opinion of the United States Court of Appeals for the Ninth Circuit in Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013). For that reason, and because the parties are familiar with the factual background of this case, the full facts will not be recited here, but are incorporated by reference to the Court’s Order at Docket Number 115 and the Ninth Circuit’s opinion in Bell.
5 The ordinances at issue are Boise City Code (“B.C.C.”) Sections 9-10-02 and 6-0105(A). Boise City Code § 9-10-02 (the “Camping Ordinance”) makes it a crime for any person “to use any of the streets, sidewalks, parks or public places as a camping place at any time.” Boise City Code § 6-01-05(A) (the “Sleeping Ordinance”) criminalizes disorderly conduct, defined to include “[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof.” B.C.C. § 6-01-05(A). These are considered misdemeanor crimes, punishable by a fine not exceeding one thousand dollars ($1,000) and imprisonment in the county jail not to exceed six (6) months. See B.C.C. §§ 6-01-21; 9-10-19. See also Idaho Code § 18-111 (explaining the difference between felonies, misdemeanors, and infractions).
MEMORANDUM DECISION AND ORDER - 4

and convicted under Boise City’s Camping Ordinance, or its Sleeping Ordinance, or both.6 Defendants are the City of Boise, the Boise City Police Department, and Boise City Police Chief Michael Masterson.
Plaintiffs contend that the Defendants’ policy, custom, and practice of issuing citations, arresting, and “harassing” homeless individuals, including Plaintiffs, under the Ordinances has the effect of criminalizing homelessness. Id. at ¶ 35. They seek declaratory, injunctive, and monetary damages relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02. More specifically, Plaintiffs ask for: (1) an order enjoining Defendants from enforcing the Ordinances against people sleeping or lying down in public; (2) an order compelling the City of Boise to expunge the criminal records of any homeless individuals cited or arrested and charged under the Ordinances; (3) an order requiring reimbursement of any fines paid or incarceration costs imposed upon homeless individuals for violation of the Ordinances; (4) and declaratory relief. See Amd. Compl., p. 25 (Dkt. 53).
Defendants previously moved for summary judgment on all claims raised by Plaintiffs in their Amended Complaint (Dkt. 53). The Court entered a Memorandum Decision and Order which held that the Rooker–Feldman doctrine7 precluded subject
6 Defendants’ Statement of Undisputed Facts (Dkt. 141-1) details the sentences imposed and attaches the state court docket sheets for each case. Plaintiffs report that they have paid fines ranging from $25 to $75 and/or have been sentenced to jail terms ranging from one to 90 days. (Dkt. 143, p. 1).
7 See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). MEMORANDUM DECISION AND ORDER - 5

matter jurisdiction over Plaintiffs’ claims for retrospective relief and that Plaintiffs’
claims for prospective injunctive and declaratory relief were largely moot because of
changes in the Ordinances and the City’s enforcement of the same stemming from an
amendment made to one of the Ordinances, and an internal policy issued by the Chief of
Police regarding the enforcement of both Ordinances. Order (Dkt. 115).
On Plaintiffs’ appeal, the Ninth Circuit reversed the dismissal of Plaintiffs’ claims
for retrospective relief “because those claims are not barred by the Rooker–Feldman
doctrine” and reversed the dismissal of Plaintiffs’ claims for prospective relief “because
those claims have not been mooted by Defendants’ voluntary conduct.” Bell v. City of
Boise, 709 F.3d 890, 892 (9th Cir. 2013). The Ninth Circuit did “not reach the merits of
Plaintiffs’ Eighth Amendment challenges” on appeal, but did rule that jurisdiction exists as to those claims.8 Id. at 896. In a footnote, however, the Ninth Circuit made specific
reference to Heck v. Humphrey’s “favorable-termination” requirement and raised the
question as to whether the holding in Heck bars Plaintiffs’ Eighth Amendment claims.
Bell, 709 F.3d at 897 n.11 (quoting Heck, 512 U.S. 477, 486–87 (1994) (“We hold that, in
8 The Eighth Amendment is the only remaining basis for Plaintiffs’ challenge to the ordinances because Plaintiffs waived appeal of all other issues “by failing to challenge these rulings in their opening brief.” Bell, 709 F.3d at 896 n.8 (explaining that although this Court “held that Plaintiffs’ right to travel claims failed as a matter of law, the Camping Ordinance was not unconstitutionally vague, the overbreadth doctrine did not apply outside the First Amendment context, and the Idaho constitutional claims failed for the same reasons as their federal counterparts[,] Plaintiffs have waived appeal of these issues by failing to challenge these rulings in their opening brief.”). Additionally, Plaintiffs did not appeal the ruling that the daytime enforcement of the Sleeping Ordinance failed as a matter of law, so only nighttime enforcement is at issue. MEMORANDUM DECISION AND ORDER - 6

order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus”) (footnote omitted)). Following the remand, Defendants filed their second motion for summary judgment, at issue now, arguing twofold that the holding in Heck and claim preclusion principles bar Plaintiffs’ Eighth Amendment claims.
DISCUSSION A. Plaintiffs’ remaining claim is an Eighth Amendment challenge to Defendants’
alleged conduct of criminalizing homelessness as a status offense. Plaintiffs allege that “Defendants are punishing Plaintiffs and other homeless individuals based on their status as homeless person[s]” and that doing so “constitute[s] cruel and unusual punishment in violation of Plaintiffs’ well established rights under the Eighth Amendment.” Amd. Compl., ¶¶ 57-58 (Dkt. 53). In response to Defendants’ first summary judgment motion, Plaintiffs similarly argued that “it is unconstitutional to criminalize involuntary acts that are an unavoidable consequence of being homeless, i.e., acts that [a homeless person] is powerless [to] avoid.” Pls.’ Resp., p. 1 (Dkt 85) (citation and internal quotation marks omitted). In making such arguments, Plaintiffs largely rely
MEMORANDUM DECISION AND ORDER - 7

on the case of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated by 505 F.3d 1006 (9th Cir. 2007).9
In Jones, a panel decision of the Ninth Circuit Court of Appeals focused upon a
discrete Eighth Amendment claim, i.e., whether the Cruel and Unusual Punishment clause
limits not just the ways in which a state can punish criminal behavior, but also “what”
behavior or conduct a state can criminalize. Jones, 444 F.3d at 1128–29. The Cruel and
Unusual Punishment 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. . . .” Ingraham v. Wright, 430 U.S. 651, 667–68 (1977). The third limitation, however—and the one at issue in Jones and in this case—should “be applied sparingly.”10
Id. at 668 (internal citations omitted).
According to the panel in Jones, when a state engages in this type of Eighth
Amendment violation, “a person suffers constitutionally cognizable harm as soon as he is
9 As described in the Court’s earlier Memorandum Decision and Order, “[t]he Jones decision was later vacated as a result of a settlement agreement; therefore the opinion is not binding.” (Dkt. 115, p. 6, n. 1). Even so, this Court considered Jones because it “does shed light on the issue and how the Ninth Circuit might approach such challenges in the future.” Id.
10 See also Powell v. Texas, 392 U.S. 514, 531–32 (1968) (“The primary purpose of [the Cruel and Unusual Punishment clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed.”). The United States Supreme Court in Powell described Robinson’s proscription as one against statutes or laws that seek “to punish a mere status”. Powell, 392 U.S. at 532. MEMORANDUM DECISION AND ORDER - 8

subjected to the criminal process.” Jones, 444 F.3d at 1129. Indeed, many Eighth Amendment cases involve challenges to the terms of a criminal punishment which arise in a manner that could not be raised as a direct defense or in a subsequent appeal of a conviction. However, this is not such a case. Here, the Eighth Amendment claims could have been raised as a defense in a criminal proceeding and on direct appeal.
An analogous case, involving an appeal of a criminal conviction under a state statute which allegedly criminalized the status of addiction to narcotics, is Robinson v. California, 370 U.S. 660, 661, 666-67 (1962).11 In Robinson, the Supreme Court considered the case on direct review, in deciding Robinson’s argument that “a law which made a criminal offense of . . . a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments”. Id. Similarly, a constitutional challenge to a Texas statute criminalizing public intoxication also went to the Supreme Court on direct appeal from a state conviction.12 Powell v. Texas, 392 U.S. 514, 517 (1968).
11 Although the “appellant tried unsuccessfully to secure habeas corpus relief in the District Court of Appeal and the California Supreme Court,” Robinson, 370 U.S. 660, 664, n.6, his appeal was “from the Appellate Department of the Superior Court of California, County of Los Angeles.” Robinson v. California, 368 U.S. 918 (1961).
12 There are some cases in which the Heck bar has not been applied to Eighth Amendment claims, but those cases involved challenges to the type of punishment imposed or conditions of incarceration and not to what conduct a state may criminalize. See, e.g., Hanner v. City of Dearborn Heights, No. 07-15251, 2009 WL 540699, *4-6 (E.D.Mich. Mar. 4, 2009) (finding Heck did not bar plaintiff’s claim that he was deprived of a crutch in jail in violation of the Eighth Amendment’s proscription against cruel and unusual punishment). MEMORANDUM DECISION AND ORDER - 9

Moreover, whether this cases presents a “facial” or “as-applied” challenge to a
statute or ordinance is immaterial. An as-applied challenge can be raised in a criminal
prosecution, and then on direct appeal from any conviction. See, e.g., United States v.
Jinian, 725 F.3d 954, 958 (9th Cir. 2013) (appellant argued a wire fraud statute was
unconstitutional as applied to him); United States v. Shetler, 665 F.3d 1150, 1156 (9th
Cir. 2011) (appellant argued at the trial level and on appeal that a statute, as applied to
him, was void for vagueness).
In sum, Plaintiffs could have raised both facial and as-applied Eighth Amendment
defenses to their criminal charges, even though they did not do so.13
B. Heck v. Humphrey bars Plaintiffs’ Eighth Amendment claims brought under § 1983.
Plaintiffs did not raise Eighth Amendment claims in their state criminal cases, nor
did any appeal their convictions. Hence, Eighth Amendment arguments were never
13 Although not mentioned in the briefing in connection with the Heck issue, Plaintiffs argued in the preclusion doctrine section of their brief that they “could not have conveniently raised their Eighth Amendment claim[s] in prior criminal misdemeanor proceedings.” Pls.’ Resp., p. 14 (Dkt. 143). A homeless person, presumably indigent and perhaps dealing with other difficulties such as mental illness, may have challenges in navigating through the criminal justice system. However, those challenges, even if daunting, are not unique and the issue presented here is not a Gideon v. Wainwright question. Others who are also indigent, or have limited understanding of the legal system, or are mentally ill, or cannot speak English, and so forth, also face challenges. Such circumstances, lamentable as they are, may make the individual’s encounter with the criminal justice system difficult, but such difficulty is a practical, not legal, barrier to raising a constitutional defense to a criminal charge. Moreover, court-appointed counsel assisted most of the Plaintiffs who appeared for the proceedings in their misdemeanor cases, so those individuals were not navigating the criminal justice system alone. (Dkt. 141-1; 141-3, pp.4-5). It is difficult to envision a sensible line to be drawn upon the particular details of an individual defendant’s personal circumstances (leaving aside an indigent’s right to counsel, which is not part of the analysis), by which this or any other court could decide that the rule in Heck ought not to apply solely because of those circumstances.
MEMORANDUM DECISION AND ORDER - 10

considered in the criminal cases. That fact is significant here, although not under any sort
of exhaustion requirement. See Heck, 512 U.S. at 489-90 (explaining that “[e]ven a
prisoner who has fully exhausted available state remedies has no cause of action under
§ 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus”) (citations and internal quotation marks
omitted)). “[W]hen a state prisoner seeks damages in a § 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Heck, 512 U.S. at 487 (emphasis added). Further:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.
512 U.S. at 486–87 (emphases added).
A judgment finding the Ordinances unconstitutional in this case necessarily would
imply the invalidity of Plaintiffs’ convictions under those Ordinances. The fulcrum of
Plaintiffs’ § 1983 claims is the allegation of unconstitutional convictions. None of those
convictions, however, was reversed on direct appeal or otherwise called into question,
MEMORANDUM DECISION AND ORDER - 11

and none of the Plaintiffs raised a constitutional challenge in his or her criminal case,
including on appeal. The holding of Heck is a close fit to such circumstances.14
Accordingly, the Heck bar applies to Plaintiffs’ claims that would necessarily imply the
invalidity of the convictions or sentences. Here, that includes the relief requesting
expungement of the records of any camping and sleeping ordinance violations,
reimbursement for any fines or incarceration costs, recovery of damages for the alleged
civil rights violations, and any other claim or recovery tied to events that have already
occurred.
C. Heck v. Humphrey does not bar Plaintiffs’ request for prospective declaratory relief.
Plaintiffs’ have requested a declaratory judgment under 28 U.S.C. §§ 2201 and
2202, stating that Defendants’ present and threatened future actions in enforcing the
Ordinances violate the Eighth Amendment’s prohibition against cruel and unusual
punishment.15 See Amd. Compl., p. 25 (Dkt. 53).
14 Although not issued on or after January 1, 2007, see Fed R. App. P. 32.1, one unpublished disposition from the Ninth Circuit addresses similar issues. In Masters v. City of Bellflower, No. 95-55921, 1996 WL 583625 (9th Cir. Oct. 7, 1996), the plaintiff raised a constitutional challenge to the validity of a city animal control statute which formed the basis of his criminal conviction. Id. at *1. The panel ruled that a judgment in the plaintiff’s favor would necessarily imply that the statute and, therefore, the plaintiff’s conviction, were invalid. Id. The criminal conviction had not been invalidated or reversed on direct appeal, and, accordingly, the Ninth Circuit affirmed the district court’s ruling that the plaintiff’s § 1983 claim against the city for damages was barred. Id., cert. denied 522 U.S. 871 (2007).
15 Plaintiffs cited to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, in the Jurisdiction and Venue section of their Amended Complaint (Dkt. 53), and asked for declaratory relief in their Prayer for Relief, but did not include this claim as a separate “claim for relief”, see id. pp. 22-24. However, they incorporated “all preceding paragraphs” in the section of the Amended Complaint stating their claims for relief. Id. at p. 22, ¶ 55.
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In most instances, the holding in Heck will bar § 1983 claims for injunctive or declaratory relief. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005) (explaining that certain “cases, taken together, indicate that a state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration”) (emphasis added).16 However, Heck does not necessarily preclude all claims under the Declaratory Judgment Act.
Moreover, Plaintiffs seek a declaration that the Ordinances violate both the United States Constitution and the Idaho Constitution. See Los Angeles County, Cal. v. Humphries, 131 S.Ct. 447, 451 (2010) (Section 1983 protects against “deprivation of any rights ... secured by the Constitution and laws [of the United States]”.) (quoting 42 U.S.C. § 1983) (internal quotation marks omitted, emphasis added, alterations in original)); Skinner v. Switzer, 131 S.Ct. 1289, 1301–02 (2011) (Thomas, J., dissenting) (explaining that the boundaries of § 1983 were first circumscribed in Preiser v. Rodriguez, 411 U.S. at 489, where “the Court began with the undisputed proposition that a state prisoner may not use § 1983 to challeng[e] his underlying conviction and sentence on federal
16 But see Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974) (permitting prisoners to use § 1983 “as a predicate to a damages award” to obtain a declaratory judgment, explaining that “because under [Preiser v. Rodriguez, 411 U.S. 475 (1973)] only an injunction restoring good time improperly taken is foreclosed, [it would not] preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations”). MEMORANDUM DECISION AND ORDER - 13

constitutional grounds”) (alteration in original, emphasis added, internal quotation marks omitted)). Accordingly, summary judgment is not warranted at this time on Plaintiffs’ request for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 220102.17 D. Heck’s bar applies to Plaintiffs’ Eighth Amendment claims brought under
§ 1983, even if federal habeas relief was unavailable on the facts of this case. Even if federal habeas relief was unavailable to any of the Plaintiffs because he or she was never in custody (or if in custody, not for any significant length of time), Heck is still a bar to the § 1983 claims based on the Eighth Amendment. Plaintiffs ask that the Court rule otherwise, relying on a concurring opinion written by Justice Souter in Spencer v. Kemna, 523 U.S. 1 (1998), a case decided after Heck. Pls.’ Resp., p. 4 (Dkt. 143). In his Spencer concurrence, Justice Souter opined that “a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.” Id. at 21 (Souter, J. concurring) (emphasis added). That circumstance, however, does not apply to Plaintiffs here, as it was not “impossible as a matter of law” for Plaintiffs to obtain the “favorable termination” required to bring a §1983 action. Any of the Plaintiffs could have raised a
17 As detailed further on in this Decision, the Court will require Plaintiffs to file an Amended Complaint and, if Plaintiffs believe they have a right to bring a declaratory judgment claim under § 1983 as one for prospective declaratory and injunctive relief despite the Court’s ruling that Heck bars all other relief requested under §1983, they should support their amended claim with appropriate authority. MEMORANDUM DECISION AND ORDER - 14

constitutional challenge to the ordinances in their criminal case, based on the same facts underlying Plaintiffs’ Eighth Amendment claims in this case, and, if successful, paved the way for a §1983 case.
Most court rulings that have found an exception to the Heck doctrine have done so in reliance on Justice Souter’s concurrence in Spencer18. That concurrence, however, must be considered in conjunction with a close reading of the majority opinion issued in Spencer, in which the Court affirmed the dismissal of a habeas claim brought by a petitioner who was no longer in custody. Such a claim, the Supreme Court ruled, was moot because after being released from custody the petitioner no longer suffered any continuing collateral consequences from his earlier parole revocation. Id. at 14–16. Justice Souter and the other justices joining in his concurrence sought to limit the reach of the majority’s ruling, (and that of Heck), by asserting that “a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement,” and thus “the answer to [petitioner] Spencer’s argument that his habeas claim cannot be moot because Heck bars him from relief under § 1983 is that Heck has no such effect.” Id. at 21 (Souter, J., concurring).19
18 Spencer, 523 U.S. 1, 18-19 (Justice Souter, in his concurrence, joined in the “Court’s opinion as well as the judgment, though [he did] so for an added reason that the Court [did] not reach.”).
19 Justice Stevens, who dissented from the majority opinion, agreed with those Justices joining in the Souter concurrence that a petitioner without a remedy under the habeas statute may bring an action under § 1983. Id. at 25 n. 8 (Stevens, J., dissenting). MEMORANDUM DECISION AND ORDER - 15

The petitioner in Spencer argued that the ruling in Heck “would foreclose him from pursuing a damages action” under § 1983, “unless he can establish the invalidity of his parole revocation,” and, therefore, “his action to establish that invalidity cannot be moot.” Id. at 17. The majority of the Justices were not persuaded, and described this argument as “a great non sequitur, unless one believes (as we do not) that a § 1983 action for damages must always and everywhere be available.” Id. (emphasis added). The majority opinion then went on to explain that a § 1983 damages claim is not foreclosed by Heck “[i]f, for example, petitioner were to seek damages for using the wrong procedures, not for reaching the wrong result,” and if that procedural defect did not “necessarily imply the invalidity of the revocation.” Id. (citing Heck, 512 U.S. at 482–83) (citations and internal quotation marks omitted).
Significantly, Justice Souter agreed that “the majority opinion in Heck can be read to suggest that [the] favorable-termination requirement is an element of any § 1983 action alleging unconstitutional conviction, whether or not leading to confinement and whether or not any confinement continued when the § 1983 action was filed.” Id. at 19 (citing Heck, 512 U.S. at 483–84). He further agreed that the majority in Heck “acknowledged the possibility that even a released prisoner might not be permitted to bring a § 1983 action implying the invalidity of a conviction or confinement without first satisfying the favorable-termination requirement.” Id. at 19-20 (Souter J., concurring). Justice Souter then explained that he joined the majority decision in Heck, “not because the favorable-termination requirement was necessarily an element of the § 1983 cause of
MEMORANDUM DECISION AND ORDER - 16

action for unconstitutional conviction or custody, but because it was a ‘simple way to avoid collisions at the intersection of habeas and § 1983.’” Id. at 21 (citation omitted).
Justice Souter’s concurrence assumes that the federal habeas statute may provide the only means of satisfying Heck’s favorable-termination requirement and, in many cases, that may well be true. However, in other cases, plaintiffs (such as those who brought this lawsuit) convicted of state crimes may raise § 1983 claims based upon underlying circumstances in which those same plaintiffs could have secured favorable terminations by raising the defense of unconstitutionality before the trial court, or by direct appeal, or by post-conviction litigation. See, e.g., Molina-Aviles v. District of Columbia, 797 F.Supp.2d 1, 6 (D.D.C. June 23, 2011) (pointing to the availability of state court habeas and habeas-type remedies to challenge plaintiffs’ alleged unconstitutional driving while intoxicated convictions and concluding that “Heck precludes any § 1983 suit challenging a criminal conviction that has not already been favorably terminated, regardless of the availability of habeas-type relief”). See also Harrison v. Michigan, 722 F.3d 768, 772–75 (6th Cir. 2013) (discussing Heck, 512 U.S. at 487).
Moreover, the Heck favorable-termination requirement is described in the disjunctive, i.e., “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. 486–87 (emphasis added).
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After Spencer, some federal circuit courts have drawn upon Justice Souter’s
concurrence to support decisions which do not apply Heck’s favorable termination
requirement, in a variety of circumstances.20 See, e.g., Leather v. Eyck, 180 F.3d 420, 424
(2d Cir. 1999) (holding that Heck did not bar a plaintiff who was convicted and fined, but
not imprisoned, from alleging selective prosecution under § 1983 because he was never in
custody and thus could not seek habeas relief)21; Wilson v. Johnson, 535 F.3d 262,
20 The Second Circuit has issued the most recent decision upon the issue. See Poventud v. City of New York, No. 12–1011–cv, 2014 WL 182313, *13 (2nd Cir. Jan. 16, 2014) (explaining that “many violations of constitutional rights, even during the criminal process, may be remedied without impugning the validity of a conviction” and finding that Poventud’s conviction had been “declared invalid by a state tribunal”). See also id., 2014 WL 182313 at *37 (Jacobs, J., dissenting) (arguing “[t]here is no need to choose a side in this split because the narrow exception articulated by Justice Souter would be inapplicable here in any event” as “[t]he motivating concern in the Spencer dicta was that circumstances beyond the control of a criminal defendant might deprive him of the opportunity to challenge a federal constitutional violation in federal court” and the defendant in the Poventud case “is not such a person”).
21 Leather was assessed a $300 fine as well as a $25 surcharge, and his driver’s license was suspended for 90 days, but he did not appeal this conviction. Leather, 180 F.3d at 424. The Second Circuit relied on a prior decision, Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999), to decide “whether a plaintiff, convicted of a criminal offense, could proceed with a § 1983 claim where no remedy of habeas corpus existed.” Id. However, the facts of Jenkins are distinguishable from Leather and the case at hand. Jenkins’ § 1983 claim did not challenge his state court conviction, but was based on his allegations that a state department of corrections employee “violated his constitutional right to procedural due process in the course of presiding over two separate disciplinary hearings.” 179 F.3d at 20. In concluding that Heck’s favorabletermination requirement did not bar Jenkins’ claim, the Second Circuit observed that, “[i]n Heck, the Court did not address administrative or disciplinary segregation at all because the plaintiff challenged only the legality of his underlying criminal conviction and not any subsequent disciplinary action” and then “h[e]ld that a § 1983 suit by a prisoner, such as Jenkins, challenging the validity of a disciplinary or administrative sanction that does not affect the overall length of the prisoner’s confinement is not barred by Heck and Edwards.” 179 F.3d at 27. Thus, considering that the Leather decision relied on the factually distinct case of Jenkins, this Court concludes that any persuasive value Leather may have does not override the other considerations that led this Court to conclude that Heck applies to bar the Plaintiffs’ claims in this case.
MEMORANDUM DECISION AND ORDER - 18

266–68 (4th Cir. 2008)22; Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d
592, 603 (6th Cir. 2007)23 (concluding that Heck is inapplicable because Powers’ one day
term of incarceration for his reckless-driving misdemeanor “was too short to enable him
to seek habeas relief”); DeWalt v. Carter, 224 F.3d 607, 617-18 (7th Cir. 2000)24 (relying
on Spencer to overrule Anderson v. County of Montgomery, 111 F.3d 494, 499 (7th Cir.
22 The Fourth Circuit in Wilson explained that the purpose of § 1983 is to “provid[e] litigants with a uniquely federal remedy against incursions . . . upon rights secured by the Constitution and laws of the Nation,” and that “[b]arring [the plaintiff’s] claim would leave him without access to any judicial forum in which to seek relief for his alleged wrongful imprisonment.” Wilson, 535 F.3d at 268. Plaintiffs here are not claiming they lacked access to a judicial forum in which to raise their Eighth Amendment challenges.
23 The plaintiff in Powers filed a § 1983 action under circumstances similar to the Plaintiffs here, i.e., upon a misdemeanor conviction for which only a short jail term was imposed. Powers alleged that he was deprived of an indigency hearing “because the Public Defender has a policy or custom of failing to request such hearings when its clients face jail time for nonpayment of court-ordered fines his incarceration,” and that “the absence of any inquiry into his ability to pay the court-imposed fine, violated his Fifth, Sixth, and Fourteenth Amendment rights.” Powers, 501 F.3d at 597. However, in a later decision discussing Powers, the Sixth Circuit commented:
Because Justice Souter joined both the Court’s opinion that Spencer’s habeas claim was moot and the judgment affirming the district court’s decision to that effect, the question he raised about whether Spencer could nevertheless maintain a § 1983 action for damages was not only unnecessary to the holding of the case but could also be described as purely hypothetical. At this point, however, we are bound by Powers . . . in which the panel chose to treat the Souter concurrence as establishing a rule of law, rather than dictum. Harrison v. Michigan, 722 F.3d 768, 774 n.1 (6th Cir. 2013).
24 The Seventh Circuit explained that “[u]nlike the plaintiffs in Preiser, Heck, and Edwards,” Mr. DeWalt’s case does not “lie at the intersection of sections 2254 and 1983” because “DeWalt does not challenge the fact or duration of his confinement, but only a condition of his confinement-the loss of his prison job.” 224 F.3d at 617. Thus, DeWalt’s circumstances also are unlike those of the Plaintiffs in this case, who have challenged the fact of their conviction and the resulting fines and, for some, confinement.
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1997), which held that Heck barred a former prisoner from challenging his conviction in a
§ 1983 suit even if he could not seek habeas relief); Cohen v. Longshore, 621 F.3d 1311,
1317 (10th Cir. 2010) (“adopt[ing] the reasoning of these circuits and hold[ing] that a
petitioner who has no available remedy in habeas, through no lack of diligence on his
part, is not barred by Heck from pursuing a § 1983 claim”); Harden v. Pataki, 320 F.3d
1289, 1298-99 (11th Cir. 2003) (concluding “that Heck does not bar most § 1983
damages claims based on improper extradition”).
Plaintiffs argue that this Court should reach a similar result, where they argue that
Plaintiffs “never had, and never would have on mootness grounds, an opportunity to
petition for a writ of habeas corpus.” Pls.’ Resp., p. 1 (Dkt. 143). However, other circuits
have imposed Heck’s bar even when federal habeas relief is not available,
notwithstanding the Souter concurrence in Spencer. As described by the Third Circuit:
As we recently held in Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005), a § 1983 remedy is not available to a litigant to whom habeas relief is no longer available. In Gilles, we concluded that Heck’s favorable-termination requirement had not been undermined, and, to the extent that its validity was called into question by Spencer, we observed that the Justices who believed § 1983 claims should be allowed to proceed where habeas relief is not available so stated in concurring and dissenting opinions in Spencer, not in a cohesive majority opinion.
Williams v. Consovoy, 453 F.3d 173, 177–78 (3d Cir. 2006). See also, Randell v.
Johnson, 227 F.3d 300, 300–01 (5th Cir. 2000) (per curiam) (holding that Heck barred a
former prisoner from alleging under § 1983 that he was improperly made to serve two
sentences for the same offense because he was not given credit for his initial prison stay);
MEMORANDUM DECISION AND ORDER - 20

Entzi v. Redmann, 485 F.3d 998, 1003–04 (8th Cir. 2007) (stating that “[a]bsent a decision of the [Supreme] Court that explicitly overrules what we understand to be the holding of Heck, . . . we decline to depart from that rule” and holding that the plaintiff’s claim may be pursued only in an action for habeas corpus relief even though plaintiff had argued that habeas corpus was no longer available to him on a claim challenging the length of his imprisonment). Indeed, the Supreme Court has said in a case decided after Spencer that the issue remains undecided of whether Heck applies when habeas review is unavailable. See Muhammad v. Close, 540 U.S. 749, 752 (2004) (per curiam) (noting that “[m]embers of the Court have expressed the view that unavailability of habeas for other reasons may also dispense with the Heck requirement” but “[t]his case is no occasion to settle the issue”).
The Court agrees with this second line of cases. The majority opinion in Heck described Justice Souter’s concurring opinion in that case as “adopt[ing] the common-law principle that one cannot use the device of a civil tort action to challenge the validity of an outstanding criminal conviction, but [thinking] it necessary to abandon that principle in those cases (of which no real-life example comes to mind) involving former state prisoners who, because they are no longer in custody, cannot bring postconviction challenges.” Heck, 512 U.S. at 490 n. 10. In response, the majority opinion firmly stated that “the principle barring collateral attacks – a longstanding and deeply rooted feature of both the common law and our own jurisprudence – is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated” and, therefore, could not
MEMORANDUM DECISION AND ORDER - 21

bring a federal habeas claim. 512 U.S. at 490 n. 10. Thus, the Supreme Court in Heck
considered more than the intersection of § 1983 actions with habeas relief. The majority
opinion emphasized “the hoary principle that civil tort actions are not appropriate vehicles
for challenging the validity of outstanding criminal judgments” and stated the Court’s
concern for “finality and consistency” in such cases, where the Court “has generally
declined to expand opportunities for collateral attack.” 512 at 485–86.
This Court is also attuned to the touchstone of caution that must attend any case
such as this, which arguably invites a remodeling of constitutional law precedent from our
Supreme Court. The Court agrees with the First Circuit, in a similar proceeding:
We are mindful that dicta from concurring and dissenting opinions in a recently decided case, Spencer v. Kemna, 523 U.S. 1 . . ., may cast doubt upon the universality of Heck’s “favorable termination” requirement. See id. at 19-21, 118 S.Ct. at 989 (Souter, J., concurring); id. at 21-23, 118 S.Ct. at 990 (Ginsberg, J., concurring); id. at 25 n. 8, 118 S.Ct. at 992 n. 8 (Stevens, J., dissenting). The Court, however, has admonished the lower federal courts to follow its directly applicable precedent, even if that precedent appears weakened by pronouncements in its subsequent decisions, and to leave to the Court “the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). We obey this admonition.
Figueroa v. Rivera, 147 F.3d 77, 81 n. 3 (1st Cir. 1998).
Accordingly, this Court concludes that the particular nuances of Justice Souter’s
concurrence in Spencer are not directly implicated in this case, and the Court finds no
MEMORANDUM DECISION AND ORDER - 22

exception to the Heck rule drawn from that decision which would require the result sought by Plaintiffs here. E. The Ninth Circuit’s holding in Nonnette is limited to the particular
circumstances of that case, which are not found here. Some of the circuit courts finding exceptions to the ruling in Heck have cited in support the case of Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002). Plaintiffs also rely upon Nonnette, arguing that they were either not incarcerated or not incarcerated long enough to bring a federal habeas action and, thus, Heck does not apply. See Pls.’ Resp., pp. 5-6 (Dkt. 143). The facts of Nonnette, however, are far different than the matter before the Court here. In Nonnette, the plaintiff claimed that he had been deprived of “good time” credits which should have reduced the amount of time he spent in state custody. 316 F.3d at 874–75. Nonnette first exhausted his prison administrative remedies, as required, before seeking alternative forms of relief. Id. at 874, n. 1. The remedy for such “good time” deprivation is ordinarily found in a petition for writ of habeas corpus, but Nonnette could not file a habeas petition because he already had been released from custody. Id. at 875–76. Under those circumstances, the Ninth Circuit held that Heck did not bar Nonnette from maintaining a § 1983 claim.25 Id. at 876.
25 The issue on appeal was framed as: “Does the unavailability of a remedy in habeas corpus because of mootness permit Nonnette to maintain a § 1983 action for damages, even though success in that action would imply the invalidity of the disciplinary proceeding that caused revocation of his good-time credits?” Id. at 876. MEMORANDUM DECISION AND ORDER - 23

However, the Nonnette court “emphasize[d]” that its holding “affects only former prisoners challenging loss of good-time credits, revocation of parole or similar matters.” 316 F.3d at 877 n. 7. In contrast to the Plaintiffs’ claims in this case, Nonnette’s constitutional claim was not ripe at the time that the issue was being considered by the prison’s administrative process. It was the decision that resulted in what Nonnette contended was a short-changing of his good time credits that gave rise to his § 1983 claim, not the underlying conviction that led him to prison in the first place.
A careful reading of the more recent decision in Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2003) also limits the holding in Nonnette to other similar circumstances, such as former prisoners challenging loss of good-time credits, revocation of parole, or similar matters. Guerrero involved a former prisoner who, after his release from prison, filed a § 1983 challenge to the validity of his conviction. The Ninth Circuit ruled that Heck barred his § 1983 claims: “Guerrero never challenged his convictions by any means prior to filing” his § 1983 lawsuit and that “[h]is failure timely to achieve habeas relief is self-imposed.” Guerrero, 442 F.3d at 705. “[T]hough habeas relief for Guerrero may be ‘impossible as a matter of law,’ we decline to extend the relaxation of Heck’s requirements.” 442 F.3d at 704–05 (comparing Nonnette, where the plaintiff diligently challenged administrative revocation of good-time credits, with Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2002), where the plaintiff failed diligently to challenge an
MEMORANDUM DECISION AND ORDER - 24

underlying criminal conviction).26 The Guerrero court narrowly construed the holding in Nonnette, emphasizing that “Nonnette was founded on the unfairness of barring a plaintiff’s potentially legitimate constitutional claims when the individual immediately pursued relief after the incident giving rise to those claims and could not seek habeas relief only because of the shortness of his prison sentence.” Guerrero, 442 F.3d at 705 (emphases added). The court emphasized that although “Guerrero is no longer in custody and thus cannot overturn his prior convictions by means of habeas corpus does not lift Heck’s bar” and even though exceptions to Heck’s bar may exist for plaintiffs no longer in custody, “any such exceptions would not apply” in Guerrero’s case. Id. at 704.
Plaintiffs’ claims here are most similar to those of the plaintiff in Guerrero, in that they seek to challenge (and thereby invalidate) convictions and sentences that have never been invalidated, or favorably-terminated, as required by Heck. Their claims are not similar to those described in Nonnette, which are those brought by “former prisoners challenging loss of good-time credits, revocation of parole or similar matters” who have timely pursued other available relief. 316 F.3d at 877 n. 7. Unlike the plaintiff in Nonnette, the plaintiffs here not only made no timely prior challenge, they did not make
26 See also Smith v. Ulbricht, No. CV12-00199-M-DLC, 2013 WL 589628, *1-3 (D.Mont. Feb. 14, 2013) (finding the plaintiff’s request to “expunge and effectively purge any evidence an arrest ever took place or conviction entered” to be more like Guerrero than Nonnette and explaining that the plaintiff “has not timely and diligently sought appropriate relief from his prior convictions” and though habeas relief may be “impossible as a matter of law,” the plaintiff was not entitled to the relaxation of Heck’s bar). MEMORANDUM DECISION AND ORDER - 25

any challenge to the constitutionality of the government conduct of which they now complain.
When considered under the Guerrero decision, decisions from other circuit courts that have applied Heck despite the unavailability of habeas relief, and against the majority opinion in Heck, this Court views the holding in Nonnette as limited to the particular circumstances and distinct facts of that case. Other district courts in the Ninth Circuit are of the same mind, in analogous circumstances. See Robertson v. Qadri, No. C 06-4624 JF, 2009 WL 150952, *3 (N.D.Cal. Jan. 21, 2009) (explaining that Robertson’s circumstances are entirely different from Nonnette because “[t]he remedy for [Robertson’s] allegedly unlawful arrest and conviction is an appropriate motion or appeal with respect to his criminal conviction” and, thus, the Heck doctrine barred Robertson’s later § 1983 claim). See also Ra El v. Crain, No. ED CV 05–00174 DDP, 2008 WL 2323524, *12-13 (C.D.Cal. June 4, 2008) (describing Nonnette as a “narrow exception limited to plaintiffs (1) who are former prisoners challenging loss of good-time credits, revocation of parole or similar matters, . . . not collaterally challenging underlying criminal convictions, and (2) who diligently pursued ‘expeditious litigation’ to challenge those punishments to the extent possible” (citations and internal quotation marks omitted).27
27 This part of the district court’s decision was affirmed on appeal to the Ninth Circuit, where the panel explained that: “[t]o the extent that [plaintiff] claims a denial of the Fourteenth Amendment right to production of exculpatory evidence, summary judgment was proper because a favorable decision on this claim ‘would necessarily imply the invalidity of his conviction.’” Ra El v. Crain, No. 08–56122, 399 Fed.Appx. 180, 182, 2010 WL 3937982, *1 (9th Cir. Oct. 5, MEMORANDUM DECISION AND ORDER - 26

F. Plaintiffs’ claims for prospective declaratory relief are not claim-precluded. Alternatively, Defendants argue that Plaintiffs’ constitutional challenge to the
Ordinances is claim-precluded because Plaintiffs were convicted and judgments imposed for violations of the Ordinances. See Defs.’ Mem., p. 7 (Dkt. 141-3). The Court need not reach this issue as to the non-prospective relief sought by Plaintiffs. However, because Heck’s bar does not apply to Plaintiffs’ requests for prospective declaratory relief under the Declaratory Judgment Act, the Court will now consider whether they are barred by the doctrine of res judicata.
Res judicata (or claim preclusion) prevents parties from re-litigating causes of action which were finally decided in a previous suit. Res judicata is an affirmative defense which, this setting, operates to give preclusive effect to prior state court judgments. See 28 U.S.C. § 1738 (federal courts must afford full faith and credit to state judicial proceedings); Allen v. McCurry, 449 U.S. 90 (1980) (federal courts considering § 1983 actions must give collateral estoppel preclusive effect to state court judgments); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984). Whether a state judgment has preclusive effect in a federal action is determined by state law governing claim preclusion. See Migra, 465 U.S. at 83–85.
The doctrine of claim preclusion is recognized as an affirmative defense under Idaho law. Put simply, “under the principle of res judicata or claim preclusion, judgment on the merits in a prior proceeding generally bars relitigation between the same parties or
2010) (quoting Heck, 512 U.S. at 487)). MEMORANDUM DECISION AND ORDER - 27

their privies on the same cause of action.” D.A.R., Inc., v. Sheffer, 997 P.2d 602, 605 (Idaho 2000) (citing Yoakum v. Hartford Fire Ins., 923 P.2d 416 (Idaho 1996)). Claim preclusion generally bars adjudication not only on the matters offered and received to defeat the claim, but also as to matters relating to the claim which might have been litigated in the first suit. Ticor Title Co. v. Stanion, 157 P.3d 613, 620 (Idaho 2007). In asserting the affirmative defense, the Defendants have the burden of establishing all of the essential elements by a preponderance of the evidence. Foster v. City of St. Anthony, 841 P.2d 413, 420 (Idaho 1992).
Defendants argue that Plaintiffs’ § 1983 claim is “factually premised upon the same conduct that led to Plaintiffs’ misdemeanor convictions.” Defs.’ Mem., p. 9 (Dkt. 141-3). Defendants do not explain how Plaintiffs could have requested prospective declaratory or injunctive relief in their criminal cases. The Court recognizes that, as described in Preiser v. Rodriguez, 411 U.S. 475 (1975), res judicata principles apply to civil rights suits brought under § 1983. Id. at 497. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 606, n. 18; Wolff v. McDonnell, 418 U.S. 539, 554, n. 12. Additionally, as outlined in Preiser, the doctrine of res judicata has been applied to issues previously decided both in state civil proceedings, e. g., Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (6th Cir. 1970), and in state criminal proceedings, e. g., Goss v. Illinois, 312 F.2d 257, 259 (7th Cir. 1963). See also Allen v. McCurry, 449 U.S. 90, 103-04 (1980) (“[N]othing in the legislative history of § 1983 reveals any purpose to afford less deference to judgments in state criminal proceedings than to those in state civil
MEMORANDUM DECISION AND ORDER - 28

proceedings.”); Webber v. Giffin, Civil No. 07–1675–KI, 2008 WL 5122702 (D.Or. Dec. 3, 2008) (finding plaintiff barred from pursuing claims, including constitutional violations under § 1983, where those claims could have been raised in administrative proceeding addressing plaintiff’s violation of Oregon water laws).
However, even though the “[t]he transactional concept of a claim is broad,” Ticor, 157 P.3d 613, 620 (internal quotation marks omitted), the res judicata doctrine does not stretch so far as to preclude the claim for prospective declaratory judgment relief that remains in this case. “What constitutes the same transaction must be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” Sadid v. Vailas, 936 F.Supp.2d 1207, 1218 (D.Idaho 2013) (internal quotation marks omitted and emphasis added) (citing Andrus, 186 P.3d at 633 (quoting the Restatement (Second) of Judgments § 24 (1982)). Here, Plaintiffs could have raised a constitutional claim as a defense to their criminal charges. However, claims for prospective injunctive and declaratory relief – traditionally tried in a civil court -- were likely unavailable for them, and would not have formed a convenient trial or conformed to the parties’ expectations about the issues involved in a criminal case.
The Court finds persuasive the decision in Cutler v. Guyer, No. 3:08–CV–371– BLW, 2010 WL 3735689 (D.Idaho Sept. 14, 2010), in which District Judge B. Lynn Winmill ruled that claim preclusion principles did not bar a § 1983 claim. Although
MEMORANDUM DECISION AND ORDER - 29

brought under different circumstances, the defendants in Cutler sought to use both claim and issue preclusion to dismiss a federal civil rights action based on the plaintiff’s prior state habeas corpus action. “An Idaho habeas corpus action is a unique state law cause of action based upon the Idaho Constitution and Idaho statute,” Judge Winmill wrote, and while that action “may involve federal constitutional issues, there is ordinarily no right to discovery, no availability of jury trial, and no availability of a remedy other than injunctive relief.” Id. at *10.
Plaintiffs did have a right to a jury trial in their criminal cases.28 However, the criminal rules and procedures do not permit the extent of discovery allowed in civil cases, nor provide an avenue to join a civil counterclaim in a criminal proceeding.
In summary, res judicata and claim preclusion principles do not bridge this proceeding and the plaintiffs’ individual criminal prosecutions. There is simply not a sufficient common ground between the facts and the nature of the proceedings to permit such a defense in this case. Additionally, because claim preclusion does not apply, the Court need not consider Plaintiffs’ argument that Defendants waived this defense by excluding it from their Answer to the Amended Complaint.
28 See Idaho Code § 19-1902 (“Issues of fact must be tried by jury, unless a trial by jury be waived in criminal cases by the consent of both parties expressed in open court and entered in the minutes. In case of misdemeanor the jury may consist of six (6) or any number less than six (6) upon which the parties may agree in open court. There shall be no right to trial by jury for an infraction punishable only by a penalty not to exceed one hundred dollars ($100) and no imprisonment.”).
MEMORANDUM DECISION AND ORDER - 30

G. Conclusion On the facts of this case, the favorable termination requirement of Heck is a bar to
Plaintiffs’ § 1983 claims. However, Plaintiffs’ claim for prospective injunctive and declaratory relief, to the extent that such claim seeks declaratory relief under the Declaratory Judgment Act, is not barred by Heck. Finally, the criminal cases and the instant case are not sufficiently identical under a claim preclusion analysis to justify application of the bar of res judicata to Plaintiffs’ claims for prospective declaratory and injunctive relief.
A portion of this case remains, but most of the claims have been dismissed. In the exercise of its discretion, the Court finds that it is appropriate for case management purposes to require Plaintiffs to file a second amended complaint stating only the claim that remains. After the Amended Complaint is filed, and Defendants respond in the ordinary course, the parties shall meet and confer and submit a new stipulated litigation plan. The stipulated litigation plan is due no later than twenty days after Defendants respond to the Amended Complaint. At that time, the Court will set a telephonic case management conference.
ORDER ACCORDINGLY, IS HEREBY ORDERED that Defendants’ Second Motion for Summary Judgment (Dkt. 141) is GRANTED, in part, and DENIED, in part, as set forth in more detail above.
MEMORANDUM DECISION AND ORDER - 31

On or before February 25, 2014, Plaintiffs shall file and Amended Complaint. After the Amended Complaint is filed, and Defendants respond, the parties shall meet and confer and submit a new stipulated litigation scheduling plan. The stipulated litigation plan is due no later than 20 days after Defendants respond to the Amended Complaint.
DATED: January 27, 2014 Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 32

 
 UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

JANET F. BELL, BRIAN S. CARSON, ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT ANDERSON, PAMELA S. HAWKES, JAMES M. GODFREY, and BASIL E. HUMPHREY,
Plaintiffs,
vs.
CITY OF BOISE; BOISE POLICE DEPARTMENT; and MICHAEL MASTERSON, in his official capacity as Chief of Police,

Case No. 1:09-cv-00540-REB
MEMORANDUM DECISION AND ORDER ON DEFENDANTS’ MOTION TO STRIKE AND DISMISS PORTIONS OF THE SECOND AMENDED COMPLAINT

Defendants.

Pending before the Court is Defendants’ Motion to Strike and Dismiss Portions of Plaintiffs’ Second Amended Complaint (Dkt. 156). The Court has carefully reviewed the record, considered oral arguments, and now enters the following Order granting, in part, and denying, in part, Defendants’ Motion.
BACKGROUND The Plaintiffs are individuals who either are, or were, homeless in Boise. They allege that Defendants (Boise City and its Police Department) have criminalized
MEMORANDUM DECISION AND ORDER - 1

homelessness in the manner in which they enforce certain Boise City ordinances.1 The factual and procedural background of this case has been described at length in earlier decisions and it need not be repeated in full here for purposes of the present motion, except as necessary in the “Discussion” section below.
Relevant here, Defendants ask the Court to dismiss Plaintiffs’ First Claim for Relief, made pursuant to 42 U.S.C. § 1983, and to strike from the Second Amended Complaint all allegations related to Defendants’ enforcement of Boise City Code § 13-03-05(E), referred to as the “Park After Dark” ordinance.2 For the reasons explained below, the Court, in large part, grants Defendants’ Motion, and will require Plaintiffs to remove one claim and several allegations from their Second Amended Complaint.3
1 The ordinances are Boise City Code Section 9-10-02 02 (the “Camping Ordinance”) and Boise City Code Section 6-01-05(A) (which prohibits disorderly conduct and is referred to throughout this order as the “Sleeping Ordinance”). They are referred to as “the Ordinances” in this Memorandum Decision and Order.
2 Boise City Code § 13-03-05(E) prohibits any person from “enter[ing] or remain[ing] in the park during times of closure, except for purposes of transit through the park, or as authorized by permit.”
3 Plaintiffs have withdrawn their demand for a jury trial and that demand is stricken from the Second Amended Complaint. See Opp’n, p. 3, n.1 (Dkt. 159). MEMORANDUM DECISION AND ORDER - 2

DISCUSSION A. Plaintiffs’ § 1983 Claim
Defendants argue that Plaintiffs’ § 1983 claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994), and, therefore, should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).4
1. Standards of Law Dismissal under Rule 12(b)(6) for failure “to state a claim upon which relief can be granted,” may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). At issue here is whether Plaintiffs have a legal basis for their § 1983 Claim. 2. Discussion In Heck, the United States Supreme Court held that:
[I]n order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a ... plaintiff must prove that the conviction or sentence has been reversed on direct appeal,
4 Defendants also seek dismissal under Federal Rules of Civil Procedure 12(f) and 16(f), but because dismissal is warranted under Rule 12(b)(6), the Court need not address these additional arguments raised as bases for striking the § 1983 Claim.
MEMORANDUM DECISION AND ORDER - 3

expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.
Id. at 486–87.
In the prior Memorandum Decision and Order on Defendants’ Motion for
Summary Judgment, this Court applied Heck’s favorable termination requirement to bar
Plaintiffs’ claims for relief under § 1983:
A judgment finding the Ordinances unconstitutional in this case necessarily would imply the invalidity of Plaintiffs’ convictions under those Ordinances. The fulcrum of Plaintiffs’ § 1983 claims is the allegation of unconstitutional convictions. None of those convictions, however, was reversed on direct appeal or otherwise called into question, and none of the Plaintiffs raised a constitutional challenge in his or her criminal case, including on appeal. The holding of Heck is a close fit to such circumstances. Accordingly, the Heck bar applies to Plaintiffs’ claims that would necessarily imply the invalidity of the convictions or sentences. Here, that includes the relief requesting expungement of the records of any camping and sleeping ordinance violations, reimbursement for any fines or incarceration costs, recovery of damages for the alleged civil rights violations, and any other claim or recovery tied to events that have already occurred.
Bell v. City of Boise, Case No. 1:09–cv–00540–REB, 2014 WL 295189, *4 (D.Idaho Jan.
27, 2014) (footnote omitted). However, the Court allowed Plaintiffs leave to assert a
MEMORANDUM DECISION AND ORDER - 4

§ 1983 claim for prospective declaratory and injunctive relief, despite the Court’s ruling that Heck bars all other relief requested under § 1983, if Plaintiffs provided authority to support such a claim.
To that end, Plaintiffs’ Second Amended Complaint references two cases as support for a narrowed § 1983 claim seeking only prospective relief—Steffel v. Thompson, 415 U.S. 452 (1974) and Vasquez v. Rackauckas, 734 F.3d 1025 (9th Cir. 2013). 2d Amd. Compl., p. 3 (Dkt. 154). Neither decision, however, provides authority or guidance that outweighs Wilkinson v. Dotson, in which the United States Supreme Court explained that certain “cases, taken together, indicate that a state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration”. 544 U.S. 74, 81–82 (2005) (emphasis added).5
5 Steffel was decided twenty years before Heck and did not involve state criminal convictions, but rather only threatened state prosecution. Thus, it is of little import on the question of Heck’s applicability. Vasquez concerned the “procedures constitutionally required” before individuals are denied the opportunity to defend against imposition and enforcement of civil injunction orders. 734 F.3d. at 1030. Heck’s bar was never raised in Vasquez, nor was the Heck case cited or discussed.
Similarly, in another case discussed by Plaintiffs at oral argument, American Civil Liberties Union, et al. v. Boise, Case No. 1:13-cv-00478-EJL, the Heck bar was neither raised by
MEMORANDUM DECISION AND ORDER - 5

Here, every iteration of Plaintiffs’ Complaint has alleged as the factual basis for their claims the fact that they were cited and convicted under the Ordinances. See, e.g., Dkt. 1, ¶¶ 7-9; Dkt. 53, ¶¶ 7-9; Dkt. 154, ¶¶ 7-10. See also Dkt. 141-1; Dkt. 143, p. 1. None of the Plaintiffs raised an Eighth Amendment challenge in their criminal proceedings. Hence, a ruling in favor of Plaintiffs on even a prospective § 1983 claim would demonstrate the invalidity of any confinement stemming from those convictions. In this way, the relief requested by Plaintiffs in this case differs significantly from what the plaintiff sought in Osborne v. District Attorney’s Office for Third Judicial District, 423 F.3d 1050 (9th Cir. 2005), a case on which Plaintiffs rely. In Osborne, the plaintiff sued under § 1983 to compel release of certain evidence used to convict him; he did not argue that his statute of conviction was unconstitutional. See Osborne, 423 F.3d at 1054 (plaintiff’s “success would yield only access to . . . evidence—nothing more”); see also id. at 1055 (noting that the Supreme Court in Wilkinson v. Dotson, 544 U.S. 74, “found it key” that “at most, success [for the plaintiffs] meant a new parole hearing, at which the prisoners might—or might not—receive reduced sentences”). In essence, in Osborne
the parties nor considered by the district court. That case involved a constitutional challenge to a Boise City ordinance brought under § 1983, similar to the claim brought here. The rule set out in Heck, however, was not considered when the court addressed the standing challenge raised by the Boise City defendants, nor in its Order on a Motion for Preliminary Injunction (Dkt. 18). Shortly thereafter, the parties stipulated to dismissal of that case (Dkt. 21).
MEMORANDUM DECISION AND ORDER - 6

(and other cases in which courts have found that Heck does not bar § 1983 claims), the plaintiffs challenged a procedure or process and not the statute of conviction. See also, e.g., Edwards v. Balisok, 520 U.S. 641, 643 (1997) (prisoner’s § 1983 action alleged “that the procedures used in his disciplinary proceeding violated his Fourteenth Amendment due process rights,” not the disciplinary decision itself) (emphasis added).
Plaintiffs have not provided any authority sufficient to persuade the Court that there should be some revision to the Court’s prior decision that Heck bars Plaintiffs’ § 1983 claims. Accordingly, the Court will not revise its prior decision on the application of Heck to the facts of this case.6 B. Allegations and Claims Related to Boise City Code § 13-03-05(E)
Defendants ask that the Court strike all allegations in the Second Amended Complaint related to the Park After Dark ordinance, Boise City Code § 13-03-05(E), under Federal Rules of Civil Procedure 12(f) and 16(f). Although much of the parties’
6 This ruling does not preclude all categories of potential plaintiffs from bringing a § 1983 claim challenging these ordinances. Those who are cited under the Ordinances and raise an Eighth Amendment claim in their criminal proceedings would not necessarily be barred by Heck from later bringing an § 1983 claim, and those who are never cited or arrested may still bring a claim if they demonstrate a realistic danger of injury. See, e.g., Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1015 (9th Cir. 2013) (explaining that, to establish standing, a plaintiff “must demonstrate a realistic danger of sustaining a direct injury as a result of a statute’s operation or enforcement,” but “does not have to await the consummation of threatened injury to obtain preventive relief”) (citation and internal quotation marks omitted).
MEMORANDUM DECISION AND ORDER - 7

argument is focused on whether these allegations may be stricken under the standards of Rule 12(f), the proper focus is on Rule 16(f) because the amendment was made after the deadline for amending pleadings and without prior leave of the Court.
There is no question that Plaintiffs’ allegations regarding the Park After Dark ordinance seek to bring a wholly separate claim against Defendants—specifically, that Defendants’ enforcement of this ordinance violates the Eighth Amendment—and that such a claim was not previously raised. Even though the Park After Dark ordinance may have been mentioned in discovery, that ordinance was never alleged as a basis for an Eighth Amendment claim, nor have Plaintiffs sought at any time permission to amend their original Complaint to add such a claim.
The deadline for amending pleadings expired long before this claim was made. Moreover, in the appeal that preceded the return of this case to this Court, the Ninth Circuit considered the claims and issues Plaintiffs brought in this case and ruled that some of Plaintiffs’ claims were properly dismissed and others abandoned on appeal. The Circuit clearly identified only one portion of the case that remained at issue on remand. Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013). Thus, there is no room left for Plaintiffs to argue that they should be allowed to remodel the case or add new claims at
MEMORANDUM DECISION AND ORDER - 8

this point in the litigation. And, indeed, they have not sought the leave of court required to amend a pleading after the case management deadline has passed.
“A schedule may be modified only for good cause and with the judge’s consent.”7 Fed. R. Civ. P. 16(b)(4). The Court has discretion to modify the schedule, Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992), but Plaintiffs have not demonstrated good cause to do so at this stage of the litigation. The parties’ claims, defenses, and positions on this case have been formed and litigated at length, and this case is before the Court on remand, having been pared down extensively before and after an appeal. Some additional discovery on the one remaining claim is warranted to give full and fair consideration to that claim; however, there is no good cause to add claims and extensively remodel the case at this point.
Additionally, unlike “Rule 15(a)’s liberal amendment policy, which focuses on the bad faith of the party seeking an amendment and the prejudice to the opposing party, the ‘good cause’ standard set forth in Rule 16 primarily focuses on the diligence of the party
7 Plaintiffs cite to and discuss the standard from Federal Rule of Civil Procedure 15, which provides that leave to amend should be freely given. Pls.’ Opp’n, p. 14 (Dkt. 159). However, the deadline to amend pleadings has expired and Rule 16 governs any request for amendment after that deadline has passed. The Court’s order requiring Plaintiffs to amend their Complaint was for the purpose of removing the dismissed claims and cleaning up the record after remand, thereby providing a cleaner slate upon which to proceed.
MEMORANDUM DECISION AND ORDER - 9

requesting the amendment.” Sadid v. Vailas, 943 F.Supp.2d 1125, 1138 (D.Idaho. 2013) (Winmill, J.) (citing Johnson, 975 F.2d at 607). Here, Plaintiffs filed a First Amended Complaint on June 28, 2010. (Dkt. 53). Not long thereafter, in August 2010, depositions occurred in which Plaintiffs learned that Defendants may be enforcing the Park After Dark ordinance against homeless individuals. See, e.g., O’Rourke Dep., pp. 37-64 (Dkt. 159-2). The parties filed motions for summary judgment over a month later, on September 30, 2010, but Plaintiffs did not seek leave to amend their First Amended Complaint or to include the Park After Dark ordinance in their summary judgment arguments, despite learning in August that citations were being issued under that ordinance. See Dkt. 85, p. 1. In short, neither the fact of the Park After Dark ordinance, nor the fact of its enforcement, was something recently discovered.
In summary, although Plaintiffs refer to their Park After Dark additions as “an additional theory of harm” and “additional grounds to find for Plaintiffs on both claims,” Pls.’ Opp’n, p. 13 (Dkt. 159), they really raise a new claim, which Plaintiffs have neither requested leave to add, nor demonstrated the requisite good cause for doing so. C. Other New Factual Allegations in the Second Amended Complaint
A motion to strike is meant to target “spurious issues,” “matter . . . that has no essential or important relationship to the claim for relief or the defense being plead,” or
MEMORANDUM DECISION AND ORDER - 10

“statements that do not pertain to the issues in [the case].” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). Additionally, Rule 12(f) motions are generally viewed with disfavor and are not frequently granted. Neilson v. Union Bank of Cal., N.A., 290 F.Supp.2d 1101, 1152 (C.D.Cal. 2003).
The Court agrees with Plaintiffs that the Second Amended Complaint properly updates information related to the Plaintiffs’ standing to bring their claims, adds statistics on Boise’s homeless population, and references reports and other information about actions taken with regard to the homeless and enforcement of the challenged Ordinances. Such revisions include allegations related to Plaintiffs’ health, homeless status, additional ordinance violation citations that they may have received, statistics regarding Boise’s homeless population, the availability of shelter beds, and actions taken by the Boise Police Department and Boise City over the past four years regarding the Ordinances and the homeless population. Such information is properly brought into the new pleading.
However, allegations related to the newly-alleged Park After Dark claim do not pertain to the claims raised in this case and should be stricken. This does not mean that Plaintiffs are precluded from presenting evidence related to that ordinance at trial if it is relevant to the claims properly raised and the evidence otherwise meets all the requirements of the Federal Rules of Evidence.
MEMORANDUM DECISION AND ORDER - 11

CONCLUSION & ORDER ACCORDINGLY, IS HEREBY ORDERED that Defendants’ Motion to Strike and Dismiss Portions of Plaintiffs’ Second Amended Complaint (Dkt. 156) is GRANTED, in part, and DENIED, in part, as set forth in more detail above. Claim One (made pursuant to Section 1983) and Plaintiffs’ demand for a jury trial are stricken from the Second Amended Complaint. Additionally, to the extent the Second Amended Complaint seeks a Declaratory Judgment regarding Boise Municipal Code § 13-03-05(E) and raises any factual allegations related to that ordinance, those portions of the Second Amended Complaint also are stricken. See, e.g., 2d Amd. Compl., ¶¶ 3, 4, 14, 15, 20, 34, 36, 39, 48, 53, 57, 61 (Dkt. 154). However, new information about the Plaintiffs, such as details of their medical and mental health history and their homelessness status, as well as citations to articles, reports, and statistics, is not stricken. See, e.g., 2d Amd. Compl., ¶¶ 1, 7-10, 16, 18, 21-27, 29, 31, 40-45, 48-53 (Dkt. 154). Plaintiffs shall remove all stricken matters from their Second Amended Complaint and, without changing any allegations or making any new claims, file a Revised Second Amended Complaint by July 31, 2014. Defendants’ response to that pleading shall be filed in the ordinary course under the applicable rules.
MEMORANDUM DECISION AND ORDER - 12

Finally, the parties shall meet and confer and submit a new stipulated litigation plan proposing deadlines for this case going forward to trial. The stipulated litigation plan is due on or before August 7, 2014. The Court will allow some additional discovery on the factual allegations and Declaratory Judgment claim contained in the Revised Second Amended Complaint. However, that discovery may be limited to the time period from the Ninth Circuit’s remand of this case to the present time. When proposing case management deadlines for discovery, dispositive motions, and ADR,8 counsel should consider that the Court’s preference is for this case to continue on an expedited schedule to allow for a trial to occur as soon as possible.
DATED: July 16, 2014.
Honorable Ronald E. Bush U. S. Magistrate Judge.
8 The deadline for initial disclosures and to amend pleadings and add parties has expired and the litigation plan accordingly need not include proposed deadlines for those events.
MEMORANDUM DECISION AND ORDER - 13

 
 Case 1:09-cv-00540-REB Document 243 Filed 04/30/15 Page 1 of 4

Allen Gardner, # 456723 (DC) Scott Jones, # 986308 (DC) Daniel Levy, # 1001692 (DC) Krysta Copeland, # 1009698 (DC) Katherine Cheng, # 87391 (VA) Greer Donley, # 66925 (MO) Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004-1304 Phone: (202) 637-2200 Fax: (202) 637-2201 Email: Allen.Gardner@lw.com Email: Scott.Jones@lw.com Email: Daniel.Levy@lw.com Email: Krysta.Copeland@lw.com Email: Katherine.Cheng@lw.com Email: Greer.Donley@lw.com

Howard A. Belodoff, ISB # 2290 Idaho Legal Aid Services, Inc. 310 N. 5th Street Boise, ID 83702 Phone: (208) 336-8980 Fax: (208) 342-2561 Email: howardbelodoff@idaholegalaid.org
Eric Tars # 94857 (PA) National Law Center on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Phone: (202) 638-2535 Fax (202) 628-2737 Email: etars@nlchp.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JANET F. BELL, et al.,

) Case No. 1:09-cv-00540-REB

)

Plaintiffs,

)

) PLAINTIFFS’ MOTION FOR

v.

) SUMMARY JUDGMENT

)

CITY OF BOISE, et al.,

)

)

Defendants.

)

_________________________________________ )

COME NOW Plaintiffs Robert Anderson and Robert Martin, by and through their counsel of record, hereby file this Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Filed in support and contemporaneously herewith are the Statement of Undisputed Material Facts, the Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, and the April 30, 2015 Declaration of Counsel Scott Jones and accompanying

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 1

Case 1:09-cv-00540-REB Document 243 Filed 04/30/15 Page 2 of 4
exhibits. Based on the record before this Court, there is no dispute of material fact and Plaintiffs are entitled to judgment as a matter of law. Plaintiffs request oral argument on this motion.

Submitted this 30th day of April, 2015

/s/_Marguerite Sullivan Marguerite Sullivan Attorney for Plaintiffs

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 2

Case 1:09-cv-00540-REB Document 243 Filed 04/30/15 Page 3 of 4
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of April, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the persons listed below.
Howard A. Belodoff IDAHO LEGAL AID SERVICES, INC. Email: howardbelodoff@idaholegalaid.org
Krysta C. Copeland LATHAM & WATKINS LLP Email: krysta.copeland@lw.com
Allen Gardner LATHAM & WATKINS LLP Email: allen.gardner@lw.com
Brady J. Hall MOORE & ELIA, LLP Email: brady@mbelaw.net
Kelley K. Fleming BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Daniel I. Levy LATHAM & WATKINS LLP Email: daniel.levy@lw.com
Michael W. Moore MOORE & ELIA, LLP Email: mike@mbelaw.net
Scott B. Muir BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Eric S. Tars NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY Email: etars@nlchp.org
Katherine Cheng LATHAM & WATKINS LLP Email: katherine.cheng@lw.com
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 3

Case 1:09-cv-00540-REB Document 243 Filed 04/30/15 Page 4 of 4

Greer Donley LATHAM & WATKINS LLP Email: greer.donley@lw.com
Scott Jones LATHAM & WATKINS LLP Email: scott.jones@lw.com

/s/ Marguerite Sullivan

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 4

Case 1:09-cv-00540-REB Document 243-1 Filed 04/30/15 Page 1 of 13 PUBLIC RECORD VERSION

Allen Gardner, # 456723 (DC) Scott Jones, # 986308 (DC) Daniel Levy, # 1001692 (DC) Krysta Copeland, # 1009698 (DC) Katherine Cheng, # 87391 (VA) Greer Donley, # 66925 (MO) Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004-1304 Phone: (202) 637-2200 Fax: (202) 637-2201 Email: Allen.Gardner@lw.com Email: Scott.Jones@lw.com Email: Daniel.Levy@lw.com Email: Krysta.Copeland@lw.com Email: Katherine.Cheng@lw.com Email: Greer.Donley@lw.com

Howard A. Belodoff, ISB # 2290 Idaho Legal Aid Services, Inc. 1447 South Tyrell Dr. Boise, ID 83706 Phone: (208) 336-8980, Ext. 1106 Fax: (208) 342-2561 Email: howardbelodoff@idaholegalaid.org
Eric Tars # 94857 (PA) National Law Center on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Phone: (202) 638-2535 Fax (202) 628-2737 Email: etars@nlchp.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JANET F. BELL, et al.,

) Case No. 1:09-cv-00540-REB

)

Plaintiffs,

) STATEMENT OF

) UNDISPUTED MATERIAL

v.

) FACTS IN SUPPORT OF

) PLAINTIFFS’ MOTION FOR

CITY OF BOISE, et al.,

) SUMMARY JUDGMENT

)

Defendants.

)

_________________________________________ )

STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Case 1:09-cv-00540-REB Document 243-1 Filed 04/30/15 Page 2 of 13 PUBLIC RECORD VERSION
Pursuant to Dist. Idaho Loc. Civ. R. 7.1(b)(1), Plaintiffs submit their Statement of Undisputed Material Facts Supporting Plaintiffs’ Motion for Summary Judgment filed contemporaneously herewith.

I. PLAINTIFFS AND THE NATURE OF HOMELESSNESS

(1) Plaintiffs’ expert Dr. David Kent concluded that homelessness is often an involuntary status beyond an individual’s control because of poverty, mental illness and physical disability, and the inability to access medical benefits and social services. Exh. 1 at 4. At least 75% of homeless individuals in Boise suffer from physical or mental disabilities. Exh. 1 at 2; see also Exh. 2 at 75:9-20. Mental illness makes it particularly difficult for homeless people to stay in shelters or access services. Exh. 1 at 3-4; Exh. 3 at 91:16-92:1.

(2) Plaintiffs Robert Anderson and Robert Martin are both homeless. Exh. 4 at 66:12-21; Exh. 5 at 108:15-21. Plaintiff Anderson has been cited under the camping ordinance, Boise City Code §9-10-02 (“Camping Ordinance”). Exh. 7. Plaintiff Martin has been cited under the disorderly conduct ordinance, Boise City Code § 6-01-05(A) (“Disorderly Conduct Ordinance”), and the Camping Ordinance. Exh. 8.

(3)

REDACTED

(4) Plaintiffs Anderson and Martin, and other cited individuals have asserted religious objections to staying at Boise Rescue Mission (“BRM”) shelters. Exhs. 9-12, 95.
STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 1

Case 1:09-cv-00540-REB Document 243-1 Filed 04/30/15 Page 3 of 13 PUBLIC RECORD VERSION
(5) Plaintiff Anderson testified that at BRM “[f]reedom of choice, I feel that’s taken away….” Exh. 4 at 73:19-20. He said, “they force religion on you,” Exh. 4 at 76:3-4, and that he was asked for his religious beliefs at River of Life (BRM’s men’s shelter or “RoL”). Exh. 4 at 112:17-19. Plaintiff Martin testified he does not “like to have other people’s beliefs … ‘rammed down my throat.’ If I choose to attend somebody else’s religious service…that’s my choice. I want to be able to have the free choice to do that.” Exh. 5 at 128:7-12. He felt that there was an unspoken “expectation” about going to chapel. Exh. 5 at 123:15-17, 123:25-124:8; see also Exh. 6 at 28:2-7.
II. BOISE HAS MORE HOMELESS INDIVIDUALS THAN EMERGENCY SHELTER BEDS A. Point-in-Time Survey (“PIT Survey”)
(6) The annual PIT Survey is a count of the number of homeless individuals. Exh. 15 at 11; Exh. 16 at 43:4-12; Exh. 17 at 3. It includes: (1) an unsheltered survey, which counts homeless people who stayed in places not meant for habitation on the night of the count; and (2) a sheltered survey, which counts homeless who stayed in shelter on the night of the count. Exh. 17 at 3-4.
(7) The City of Boise (“the City”) has acknowledged that the PIT Survey is the best, and essentially only, way it counts homeless individuals. Exh. 18 at 32:13:-33:3, 52:7-11; see also Exh. 16 at 54:6-10; Exh. 19 at 118:18-24. The PIT Survey is relied on for many purposes: measuring homelessness, awarding funds, and system planning. Exh. 15 at 3; Exh. 20 at 119:16120:18.
(8) The City has contracted with Beth Geagan to coordinate the PIT Survey for Region 7, which comprises all of Ada County. Exh. 19 at 38:9-11. Ms. Geagan conducts the unsheltered survey
STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 2

Case 1:09-cv-00540-REB Document 243-1 Filed 04/30/15 Page 4 of 13 PUBLIC RECORD VERSION
by identifying known locations where homeless individuals may be found, and recruiting and training volunteers to interview homeless individuals in those locations about where they stayed the night of the count. Exh. 19 at 46:4-15, 52:12-53:3, 75:1-9, 76:10-14; Exh. 15 at 37-39. Homeless service providers conduct the sheltered count. Exh. 19 at 97:17-24; Exh. 21.
(9) All the locations Ms. Geagan suggested and that volunteers signed up to search were in Boise, except three locations in Meridian. Exh. 22. Every completed unsheltered individual survey for the 2012-2014 PIT Surveys was taken in Boise.1 Exh. 23. There is no evidence that volunteers searched elsewhere.
B. Number of Beds in Emergency Shelters in Boise (10) There are two sources for the number of beds for homeless individuals in Boise: affidavits from shelter providers and the Housing Inventory Chart (“HIC”) survey. Three shelters provide emergency beds to homeless individuals in Boise: Interfaith Sanctuary (“Sanctuary”), and the BRM shelters: RoL (men) and City Light (women and children). Exh. 24 ¶¶ 4, 6-7; Exh. 25 ¶ 6.
(11) Sanctuary’s self-reported capacity is 96 beds for men and women, plus 12 overflow mats. Exh. 25 ¶¶ 6. RoL’s self-reported capacity is 148 beds, plus 40 overflow mats. Exh. 24 ¶ 6. City Light’s self-reported capacity is 110 beds, plus 40 overflow mats. Exh. 24 ¶ 7. The total self-reported capacity is 354 beds plus 92 overflow mats, or 446 total.
(12) There are legal limits to using overflow mats at BRM. A fire inspector allowed RoL to use overflow mats during inclement weather, but not regularly. Exh. 27 at 32:20-33:3, 74:8-13, 149:22-150:11; Exh. 26 at 136:24-137:3; see also Exh. 18 at 104:18-22. No inspector has given
1 During that same time period, only three surveys of any type – two of which were precariously housed – were taken outside of Boise. Declaration of Counsel Scott Jones ¶ 25, (Apr. 30, 2015) ("Jones Decl."). STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 3

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that approval to City Light. Exh. 3 at 28:10-24; 51:23-52:2. Only a surprise inspection would reveal a violation, but such inspection is unlikely to occur. Exh. 28 at 213:10-16; Exh. 27 at 48:21-49:5.
(13) The annual HIC survey measures housing inventory, including emergency shelter beds. Exh. 29 at 4; Exh. 30 at 5. The three emergency shelters report the number of beds they have available on a year-round basis, even if they are not in use at the time of the survey, as well as any overflow mats in use at that time. Exh. 30 at 4, 12. Overflow beds are beds provided on an ad-hoc basis in response to demand. Id. at 12; Exh. 20 at 98:24-100:9. Overflow beds are not reported if they are not in use at the time. See Exh. 31.
(14) Table 1 of Dr. Burt’s report shows the number of regularly-available beds for individuals and families, and vouchers in use for 2008-2014. Exh. 29 at 6. Seasonal beds are beds available for planned periods of high demand, Exh. 20 at 98:17-23, but the Boise shelters have not had seasonal beds since 2011. Exh. 32. Vouchers to stay at a hotel or motel are only available for families with children. Exh. 18 at 86:7-13; Exh. 33.
(15) The publicly available 2008-2014 HIC Reports show that there were no more than 410 emergency beds and overflow mats available and in use for any year at the three shelters. Jones Decl. ¶ 34; see also Exh. 32.
C. The PIT Survey Undercounts the Number of Homeless Individuals in Boise (16) Dr. Burt concluded that the PIT Survey undercounted homeless individuals in Boise. Exh. 29 at 10-11.
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(17) Various factors can lead to an undercount. Exh. 34 at 4; Exh. 20 at 34:11-18. Factors include the number of volunteers, the adequacy of training, the difficulty of locating homeless individuals, weather, police involvement, and method and timing used for the count. Exh. 20 at 34:11-18, 66:12-23, 138:11-139:13; Exh. 34 at 4; Exh. 15 at 37, 55; Declaration of Beth Geagan at ¶ 17, Mar. 5, 2015 [Dkt. 216] (“Geagan Decl.”). The Idaho Housing and Finance Association (“IHFA”) produces Idaho’s PIT Survey Report and stated “It is widely recognized that a onenight point in time count will undercount the homeless population.” Exh. 34 at 4; see also Exh. 35 at 2; Exh. 20 at 33:17-19, 34:7-10. The City may be unable to find individuals who do not want to be found. Exh. 18 at 43:9-10; 51:18-52:8. The BPD stated that homeless people can be good at hiding. Exh. 28 at 239:22.
(18) Record evidence2 supports the conclusion that the homeless in Boise were undercounted:
(a) A volunteer located a homeless person and was not able to fill out an unsheltered form for that individual. Exh. 36.
(b) Ms. Geagan uses a known locations count, Exh. 19 at 42:12-13, 82:13-20, which results in an undercount to the extent that the list of known locations misses areas where homeless people are located. Exh. 15 at 55. The City has admitted there are campsites in Camelsback Park, Exh. 18 at 44:16-18; Exh. 19 at 89:18-20; see also Exh. 37 at 58:12-15, but volunteers do not sign up to search that location every year. Compare Exh. 22 at 6 with Exh. 22 at 19 and Exh. 22 at 36.
2 Ms. Geagan did not affirmatively keep any documents related to the PIT Survey until January 27, 2015, and while some pre-2015 documents were located and produced in March 2015, Geagan Decl. ¶¶ 11, 14, Plaintiffs are unable to point to documents for the prior time period that were never found. STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 5

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(c) The City has struggled to find enough volunteers, see, e.g., Exh. 38, and Ms. Geagan has admitted that “the more [volunteers] we have the better the coverage.” Exh. 39. Some volunteers were unable to attend trainings. Exh. 40. Volunteers can also cancel at the last minute. See, e.g., Exh. 41.
(d) Ms. Geagan and her employees have had to correct miscommunications regarding how to conduct the PIT Survey, Exh. 42, and have fielded questions after training from volunteers who remained uncertain of how to conduct the PIT Survey in a group setting because people might feel awkward about being asked if they were homeless. Exh. 43.
(e) The BPD was instructed to conduct extra patrols during the PIT survey, and some officers appear to have participated in the unsheltered survey. Exhs. 44-46. Police participation can lead to an undercount. Exh. 15 at 33; Exh. 47 at 27. When police are involved, they must clarify that they are only to assist the count, Exh. 15 at 33, but there is no evidence that the BPD did so.
(19) Homeless individuals in jail the night of the PIT Survey are not counted in the sheltered or unsheltered count. Exh. 20 at 88:19-25, 91:23-92:1; Exh. 15 at 30, 53. In January, 2013, 77 people in jail were homeless – a 250% increase in the jail’s homeless population for January. Exh. 48 at 3. In 2014, that number rose to 113. Exh. 49 at 5. In 2012, 2013, and 2014 respectively, IHFA counted 52, 49, and 72 precariously housed individuals in jail on the night of the PIT Survey. Jones Decl. ¶ 52.
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D. There Are Not Enough Emergency Shelter Beds Available to Homeless Individuals in Boise
(20) Dr. Burt concluded that since 2011, there were fewer emergency shelter beds than homeless individuals in Boise, even without assuming an undercount. Exh. 29 at 8, Table 4.
(21) Sanctuary has reported that its emergency shelter program is generally at capacity, see Exhs. 50-51 and has turned homeless individuals away. See, e.g., Exh. 51 at 21, 28, 54.
(22) BRM shelters have reported they are at or near capacity. Exh. 52; see also Exh. 53 at 4 (noting shelters at capacity). RoL has reported that “12-15 [individuals were] on the floor every night….” Exh. 54 at 4.
(23) Based on the evidence that the PIT Survey undercounts homeless individuals and the fact that homeless people in jails should be counted as part of the system need for emergency housing, the number of homeless individuals in Boise exceeds the available bed space by any measure.
III. THE CITY’S ENFORCEMENT OF THE MUNICIPAL ORDINANCES (24) The Disorderly Conduct Ordinance and the Camping Ordinance (“Municipal Ordinances”) prohibit sleeping on public property. Exh. 55. Since 2010, the BPD has had a Special Order prohibiting officers from issuing citations under the Municipal Ordinances if shelter space is unavailable, the individual has exceeded the maximum stay at a shelter, or it does not meet disability needs. Exh. 56 at 2; Exh. 57 at 73. In September 2014, the City amended the Municipal Ordinances to prohibit enforcement when “there is no available shelter.” Exh. 58 at 5.
(25) The BPD has cited homeless individuals who are merely sleeping, see, e.g. Exhs. 59-61, and without determining why they did not stay at a shelter. See, e.g., Exh. 62.
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A. Emergency Shelter Bed Capacity (26) The BPD relies on shelters to report when they are full. Exh. 63 at 104:-9, 105:12-17; Exh. 64 at 18:2-8; Exh. 28 at 220:4-11, 224:7-12; Exh. 65 at 29:1-9; Exh. 66. Shelters determine when they are full and the City admitted it does not know what the shelters’ capacities are. Exh. 18 at 151:23-152:2; 81:15-18, 82:4-5, 82:17-21, 110:4-5; see also Exh. 28 at 177:15-20, 199:1416, 206:12-15.
(27) Before issuing a citation, officers do not always check for the notification that shelters are full. Exh. 28 at 105:20-22; Exh. 63 at 106:7-107:13; Exh. 67 at 81:13-19; Exh. 68. Nor are officers required to be familiar with shelter policies or contact the shelter directly. Exh. 28 at 168:19-22, 169:4-6; Exh. 65 at 66:15-20.
(28) RoL and City Light’s stated policy is to never turn anyone away and thus does not call in full. Exh. 69; Exh. 70 at 47:16-18, 60:24-25, yet the BPD has issued citations when Sanctuary has called in full. See, e.g. Exhs. 71-74, 92, 96-100; see also Exhs. 93-94.
B. Disability (29) There is no requirement to check whether a shelter can accommodate a disability, even though the Chief of Police stated that would should be part of an officer’s determination. Exh. 75 at 79:4-9; Exh. 2 at 108:18-22. BPD officers’ testimony shows that they do not understand what disabilities may prevent homeless individuals from staying in shelters, Exh. 37 at 96:2-6; 97:6-10, 101:23-102:15; Exh. 2 at 133:5-17, 134:11-17; Exh. 75 at 78:9-23, 79:14-16; Exh. 28 at 148:23-149:3, 150:22-151:2, and supervisors do not provide guidance. Exh. 37 at 102:25-103:6.
(30) The City recognizes that some people are beyond the level of care that shelters can provide. Exh. 18 at 126:9-19; see Exh. 76. The BPD has cited at least one individual, Stewart Beckman, STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 8

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believed to suffer from mental illness. Mr. Beckman, who is barred from Sanctuary, Exh. 77, was cited after the officer noted only periodic lucidity, an oft-repeated claim that Mr. Beckman is a government informant, and claims that the shelters take his medicine and force illegal drugs on him. Exh. 78; Exh. 79 (inability to stay at RoL uncontested by the officer); see also Exh. 80.
C. Other Restrictions on Shelter Availability (31) Homeless men at RoL may only stay in emergency shelter for 17 days in a row, and then must leave for 30 days or enter one of its formal programs, such as its drug and alcohol recovery program. Exh. 81 at 26:16-18; Exh. 28 at 201:5-13. Homeless women and children may stay at City Light for 30 days in a row before facing the same choice. Exh. 82 at 4; Exh. 28 at 201:5-13. BRM suspends these rules in the winter. Exh. 3 at 61:13-62:1; Exh. 70 at 43:18-20. Plaintiff Anderson stated he was not allowed to stay at RoL after reaching the time limit. Exh. 9 at 9. The BPD does not know which individuals have reached the limit, Exh. 28 at 202:7-9 and has issued at least one citation to a homeless individual who had reached the limit. Exh. 83.
(32) Individuals may be barred from shelters for various reasons, including physical violence and being beyond the level of care a shelter can provide. Exhs. 76-77, 84. The BPD does not regularly receive copies of the banned lists, and officers are not required to call shelters to inquire. Exh. 28 at 47:15-19, 48:12-17, 236:4-15. The BPD has cited at least one individual who was barred from one shelter even when the other shelter called in full. See, e.g., Exh. 72.
D. The BPD’s Pilot Enforcement Program (33) In late September 2014, the BPD began a pilot program where if Sanctuary called in full, they would not enforce the Municipal Ordinances in Rhodes Park (the “Pilot Program”). Exh. 28 at 80:3-11, 102:24-103:8, 211:22-24; Exh. 37 at 76:1-77:15. A BPD officer testified that this
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practice was likely to end at some point, Exh. 37, 83:15-23, and it appears to have done so based on recent citations issued when Sanctuary called in full, see, e.g., Exhs. 73-74, 85-87.

IV. BOISE RESCUE MISSION IS A RELIGIOUS INSTITUTION (34) BRM is a religious organization whose primary purpose is to spread its religious beliefs. Exh. 24 ¶ 3; Exh. 24 at 11, 21. Every day, BRM conducts numerous religious activities, including worship services, bible studies and morning prayer. Exh. 24 at 22, 26. BRM offers Christian spiritual guidance, counseling, and religious services as part of its emergency shelter bed program. Id.

(35) Homeless individuals seeking to stay in BRM’s emergency shelter beds must read and sign the intake form and the rules. Id. at 22-23. The rules are headed by a Bible quotation and state: “Welcome to River of Life Rescue Mission, where our first objective is to introduce everyone to our Lord and Savior Jesus Christ,” and the intake form inquires about the individual’s religion and whether s/he would be interested in learning more about Jesus. Exh. 89 at 2; Exh. 88 at 2. The rules set out no-smoking times, which include “during chapel time between 6 pm and 7 pm.” Exh. 89 at 5. Also, individuals who do not attend the evening chapel service in the dining room at 6 pm must stay in their dorms until 7 pm. Id. Homeless individuals who participate in religious services are given preferences such as going to the front of the line for food and beds. Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, 657 F.3d 988, 996-97 (9th Cir. 2011).

Submitted this 30th day of April, 2015

/s/ Marguerite Sullivan Marguerite Sullivan Attorney for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of April, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the persons listed below.
Howard A. Belodoff IDAHO LEGAL AID SERVICES, INC. Email: howardbelodoff@idaholegalaid.org
Krysta C. Copeland LATHAM & WATKINS LLP Email: krysta.copeland@lw.com
Allen Gardner LATHAM & WATKINS LLP Email: allen.gardner@lw.com
Brady J. Hall MOORE & ELIA, LLP Email: brady@mbelaw.net
Kelley K. Fleming BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Daniel I. Levy LATHAM & WATKINS LLP Email: daniel.levy@lw.com
Michael W. Moore MOORE & ELIA, LLP Email: mike@mbelaw.net
Scott B. Muir BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Eric S. Tars NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY Email: etars@nlchp.org
Katherine Cheng LATHAM & WATKINS LLP Email: katherine.cheng@lw.com
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Greer Donley LATHAM & WATKINS LLP Email: greer.donley@lw.com Scott Jones LATHAM & WATKINS LLP Email: scott.jones@lw.com
/s/ Marguerite Sullivan
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Allen Gardner, # 456723 (DC) Scott Jones, # 986308 (DC) Daniel Levy, # 1001692 (DC) Krysta Copeland, # 1009698 (DC) Katherine Cheng, # 87391 (VA) Greer Donley, # 66925 (MO) Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004-1304 Phone: (202) 637-2200 Fax: (202) 637-2201 Email: Allen.Gardner@lw.com Email: Scott.Jones@lw.com Email: Daniel.Levy@lw.com Email: Krysta.Copeland@lw.com Email: Katherine.Cheng@lw.com Email: Greer.Donley@lw.com

Howard A. Belodoff, ISB # 2290 Idaho Legal Aid Services, Inc. 1447 South Tyrell Dr. Boise, ID 83706 Phone: (208) 336-8980, Ext. 1106 Fax: (208) 342-2561 Email: howardbelodoff@idaholegalaid.org
Eric Tars # 94857 (PA) National Law Center on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Phone: (202) 638-2535 Fax (202) 628-2737 Email: etars@nlchp.org

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

JANET F. BELL, et al.,

) Case No. 1:09-cv-00540-REB

)

Plaintiffs,

) MEMORANDUM OF POINTS

) AND AUTHORITIES IN

v.

) SUPPORT OF PLAINTIFFS’

) MOTION FOR SUMMARY

CITY OF BOISE, et al.,

) JUDGMENT

)

Defendants.

)

_________________________________________ )

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
STANDARD OF REVIEW .............................................................................................................3
LEGAL BACKGROUND ...............................................................................................................4
I. THE EIGHTH AMENDMENT PROHIBITION ON LAWS THAT CRIMINALIZE STATUS NECESSARILY EXTENDS TO LAWS THAT CRIMINALIZE STATUS MERELY REPHRASED AS CONDUCT ...............................4
II. UNDER THE “VOLUNTARINESS” PRONG OF THE EIGHTH AMENDMENT TEST, EMERGENCY SHELTER BEDS OFFERED AT RELIGIOUS SHELTERS MUST NOT BE TREATED AS “AVAILABLE” ...................8
ARGUMENT .................................................................................................................................10
III. THE MUNICIPAL ORDINANCES CRIMINALIZE STATUS IN VIOLATION OF THE EIGHTH AMENDMENT BY CITING PERSONS WHO ARE HOMELESS AND SUFFERING FROM MENTAL OR PHYSICAL DISABILITIES FOR SLEEPING OUTSIDE ...................................................................10
A. The Municipal Ordinances Have Been and May be Applied Against Individuals Merely for Resting, Lying Down, or Sleeping ...................................10
B. Emergency Shelter Beds are Often and May Be Unavailable to Homeless Individuals in Boise ...............................................................................................11
1. There Is a Shortage of Emergency Shelter Beds in Boise .........................12
2. Nearly Two-Thirds of the Shelter Beds in Boise Are Offered at Religious Shelters and Must Be Excluded from the Eighth Amendment Analysis.................................................................................14
3. Shelter Beds Are Often and May Be Unavailable to Individuals Due to Mental Illness or Physical Disability .............................................16
C. The Municipal Ordinances Have Been and May Be Enforced against Homeless Individuals when Emergency Shelter Beds Are Unavailable ...............16
IV. DECLARATORY AND INJUNCTIVE RELIEF IS APPROPRIATE BECAUSE AS A MATTER OF LAW AND UNDISPUTED FACT PLAINTIFFS HAVE A LEGITIMATE THREAT OF HAVING THEIR EIGHTH AMENDMENT RIGHTS VIOLATED ........................................................................................................17
CONCLUSION ..............................................................................................................................19
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TABLE OF AUTHORITIES
Page(s)
CASES
Anderson, et. al. v. City of Portland, et. al., Civ. No. 08-1447-AA, 2009 U.S. Dist. LEXIS 67519 (July 31, 2009) .....................................7
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...................................................................................................................4
Bilbrey by Bilbrey v. Brown, 738 F.2d 1462 (9th Cir. 1984) .................................................................................................19
Celotex Corp. v. Catrett, 477 U.S. 317 (1986)...................................................................................................................4
Fowle v. United States, 410 F.2d 48 (9th Cir. 1969) .......................................................................................................9
Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007...........................................................................................9, 10, 16
Intermountain Fair Housing Council v. Boise Rescue Mission Ministries, 657 F.3d 988 (9th Cir. 2011) ...................................................................................................15
Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) ......................................................................................... passim
Lawrence v. Texas, 529 U.S. 558 (2003)...................................................................................................................8
Lemon v. Kurtzman, 403 U.S. 602 (1971)...................................................................................................................9
Leslie v. Grupo ICA, 198 F.3d 1152 (9th Cir. 1999) ...................................................................................................4
McGraw-Edison Co. v. Preformed Line Products Co., 362 F.2d 339 (9th Cir.), cert. denied, 385 U.S. 919 (1966).....................................................19
Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).......................................................................................................8
Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) ...................................................................................................19
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Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992) .......................................................................................1, 7
Powell v. Texas. 392 U.S. 514 (1968)...............................................................................................................5, 6
Robinson v. California, 370 U.S. 660 (1962)...................................................................................................................5
Roper v. Simmons, 543 U.S. 551 (2005)...................................................................................................................8
Simmons v. United States, 390 U.S. 377 ........................................................................................................................9, 16
T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626 (9th Cir. 1987) .....................................................................................................4 STATUTES
Boise City Code § 6-01-05(A) .........................................................................................................2 Boise City Code § 6-01-05(D) .........................................................................................................2 Boise City Code § 9-10-02 ..............................................................................................................2 Stewart B. McKinney Homeless Assistance Act of 1987 § 103(a), 42 U.S.C.
§ 11302(a) (2000) ......................................................................................................................7 RULES
Fed. R. Civ P. 56(a) .........................................................................................................................4 CONSTITUTIONAL PROVISIONS
Eighth Amendment ................................................................................................................ passim OTHER AUTHORITIES
Edwin Borchard, Declaratory Judgments 299 (2d ed. 1941).........................................................19 Searching Out Solutions: Constructive Alternatives to the Criminalization of
Homelessness, United States Interagency Council on Homelessness (2012)............................8 U.N. Human Rights Committee, Concluding Observations on the Fourth Report
of the United States of America, ¶ 19, U.N. Doc. CCPR/C/USA/CO/4 (2014).........................8
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INTRODUCTION In Boise, Idaho, homeless individuals may receive criminal citations for sleeping outside at night, even when there are no beds available for them at the city’s homeless shelters. In 2006, the Ninth Circuit concluded that the Eighth Amendment prohibited the City of Los Angeles from issuing citations to homeless persons under circumstances materially no different from here. Jones v. City of Los Angeles. 444 F.3d 1118, 1138 (9th Cir. 2006). While Jones was later vacated by settlement, 505 F.3d 1006 (9th Cir. 2007), its reasoning remains persuasive and is directly applicable in this case.1 The threat of further violations of homeless individuals’ Eighth Amendment rights in Boise persists because Defendants have neither written their laws sufficiently narrowly to comport with Jones, nor have they adopted enforcement mechanisms that would prevent certain city ordinances from being unconstitutionally applied.

Defendants recognize the problem. Plaintiffs are men suffering from chronic

homelessness,

REDACTED

, who have received

misdemeanor citations and threats of fines and imprisonment for sleeping outside in Boise,

where there are not enough emergency shelter beds for them and other similarly situated

homeless individuals. See infra Section IV.

In September 2014, in response to concerns Plaintiffs have raised, the City of Boise (“the City”) changed its laws to prohibit enforcement of the two city ordinances at issue here – one prohibiting camping, § 9-10-02 (“Camping Ordinance”) and the other prohibiting disorderly

1 The Ninth Circuit is not the only court to have decided that these types of laws are unconstitutional. See, e.g. Pottinger v. City of Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992) (holding “[a]s long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something which they may not be convicted under the Eighth Amendment – sleeping, eating and other innocent conduct.”).
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conduct, § 6-01-05(A) (“Disorderly Conduct Ordinance”), see Exhs. 55, 58 (together, the “Municipal Ordinances”) – when Boise’s emergency shelters are “full.”2 This amendment was
based in part on a Special Order that the Boise Police Department (“BPD”) adopted in 2010.
Exh. 58 at 4. The Special Order also prohibited enforcement of the Municipal Ordinances when
shelters were “full,” and clarified that emergency shelter beds should be treated as unavailable if
they do not meet an individual’s disability needs or if the individual exceeded the maximum allowable stay.3 Exh. 56 at 2; Exh. 57 at 73. The City’s September 2014 amendment did not
include these conditions. See Exh. 58 at 4-5.
These changes are superficial. Plaintiffs’ constitutional rights remain in jeopardy.
Plaintiffs still face citations, fines, and imprisonment for sleeping outside because two of the three emergency shelters in Boise (those identified with Boise Rescue Mission (“BRM”))4
simply refuse to report themselves as such. And since the carve out for mental illness and
disability has not been codified and because the BPD has provided insufficient training on the
application of the Special Order, homeless individuals suffering from mental illness and
disability still need relief from this Court. Consequently, Plaintiffs and other homeless
2 “Law enforcement officers shall not enforce [the Municipal Ordinances] when the individual is on public property and there is no available overnight shelter. The term ‘available overnight shelter’ is a public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness, at no charge. If the individual cannot utilize the overnight shelter space due to voluntary actions such as intoxication, drug use, unruly behavior, or violation of shelter rules, the overnight shelter space shall still be considered available.” Boise City Code §§ 6-01-05(D), 9-10-02; Exh. 55 at 4, 10-11; Exh. 58 at 5. 3 “To qualify as available, the space must take into account sex, marital and familial status, and disabilities….If an individual cannot utilize space because the space does not allow for or is not suitable to meet the individual’s disability needs, or the individual has exceeded the maximum allowable stay, then the space cannot be considered available for that individual.” Exh. 56 at 2; Exh. 57 at 73. 4 As discussed in Section III.B.2, infra, these shelter beds are associated with a religious shelter and therefore should be excluded from the BPD’s consideration regardless. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 2

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individuals in Boise remain in jeopardy of being criminally cited in violation of the Eighth Amendment.
As a result, Plaintiffs, homeless individuals in Boise, must persist in their challenge to the constitutionality of the Municipal Ordinances. Sleeping outside is unavoidable for Boise’s homeless population.5 See Jones, 444 F.3d at 1137 (Whatever past volitional acts led them to sleep on sidewalks were “not sufficiently proximate to the conduct at issue here for the imposition of penal sanctions to be permissible.”) And, as Plaintiffs’ unrebutted expert report concluded, the number of homeless individuals is greater than the number of shelter beds available to them. And the problem is exacerbated for individuals with disabilities and illnesses that prevent them from making use of shelter beds.
On the material facts in this case, over which there is no genuine dispute6, this Court should find as a matter of law and provide declaratory and appropriate injunctive relief on the conclusion that Defendants’ Municipal Ordinances are unconstitutional under the Eighth Amendment to the extent they apply to and are enforced against individuals for whom shelter beds are unavailable whether because (1) there are fewer emergency shelter beds than there are homeless individuals or (2) mental illness or physical disability.
STANDARD OF REVIEW Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
5 As Plaintiffs’ expert Dr. Kent concluded, “[h]omelessness is almost always the result of factors beyond an individual’s control….” Exh. 1 at 4. 6 Although Plaintiffs maintain that there are no undisputed material facts with respect to the arguments presented in this Motion, Plaintiffs make no assertions regarding the existence of other disputed facts. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 3

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R. Civ P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “A ‘material’ fact is one that is relevant to an element of a claim or defense and whose existence might affect the outcome of the suit…. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Deference to the nonmoving party has limits, and the “mere scintilla of evidence in support of the [nonmoving party’s] position [is] insufficient.” Anderson, 447 U.S. at 252. The Court may not “make credibility determinations,” T.W. Elec. Serv., Inc. v. 809 F.2d at 630, nor may it “disregard direct evidence on the ground that no reasonable jury would believe it.” (citation omitted). Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). In addition, “the burden of the moving party may be discharged by ‘showing’… that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp, 477 U.S. at 325.
LEGAL BACKGROUND I. THE EIGHTH AMENDMENT PROHIBITION ON LAWS THAT CRIMINALIZE
STATUS NECESSARILY EXTENDS TO LAWS THAT CRIMINALIZE STATUS MERELY REPHRASED AS CONDUCT Just as the Eighth Amendment prohibits the criminalization of status, it prohibits the criminalization of conduct that is “integral to and an unavoidable result of that status.” Jones, 444 F.3d at 1132. This was the conclusion of the Ninth Circuit in Jones, which recognized – based on the Supreme Court’s reasoning in Robinson and in Powell – that “conduct integral to and the unavoidable result of that status” is essentially status merely rephrased as conduct, when concluding that a Los Angeles ordinance criminalizing sleeping outside could not be enforced as to homeless persons when no shelter beds were available. Id. at 1132-36.
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In Robinson v. California, the Supreme Court ruled that a California law violated the Eighth Amendment because it criminalized the status of being addicted to the use of narcotics, rather than criminalizing the conduct itself, i.e. using narcotics. 370 U.S. 660, 666 (1962). There has been some dispute, though, over whether Robinson extends merely to pure status or to some conduct inextricably related to status (and if so, how that conduct should be defined). On the one hand, if Robinson only applies to the criminalization of pure status, then its protections may be evaded by merely rephrasing status as conduct or simply adding an innocent, unavoidable act to an ordinance that otherwise is designed to prohibit a status.7 On the other hand, an extension of Robinson to conduct without a rule of limitation could invite challenges to conduct Robinson was not intended to reach.
This issue is most challenging where criminalized conduct is closely related to status. The Supreme Court reached a fractured decision on such an issue in Powell v. Texas, 392 U.S. 514 (1968). Powell concerned the enforcement of a law prohibiting public intoxication. Id. at 516-17 (plurality opinion). The law in question concerned the status of being a chronic alcoholic and two alleged acts: (1) becoming intoxicated and (2) being in public.
Four Justices joined in a plurality opinion that questioned the involuntariness of the appellee’s conduct and expressed concern about extending Robinson to conduct without an appropriate limiting principle. 392 U.S. at 535 (plurality opinion). These Justices did not command a majority of the Court; however, the law was upheld because Justice White, concurring but not joining in the opinion, concluded that the record was insufficient to show that
7 For example, one could evade Robinson by rephrasing “being addicted” to “the act of possessing a symptom or symptoms of addiction” or by rephrasing “being addicted” to “being addicted while engaging in the act of breathing.” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 5

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the appellee was unable to avoid being in public while intoxicated. Id. at 550, 553-54 (White, J., concurring in the result). Consequently, the conduct was not unavoidable and would not be protected even if Robinson applied to conduct that was the unavoidable result of status. While the statute was upheld, the four Justices in the minority and Justice White agreed – making a majority of the Court – that voluntariness was the decisive issue in the case. Id. at 534, 554.
The Jones court recognized the five Justice agreement in Powell about voluntariness, but also provided the limiting principle the plurality in Powell sought by establishing the first of two necessary criteria conduct must share to obtain protection under Robinson. First, under Jones, the Eighth Amendment only protects conduct that is “integral to” status and, second, that conduct must also be “unavoidable.” Jones, 444 F.3d at 1132. The first prong – that conduct must be “integral to” status – provides the necessary limitation to ensure that Robinson is not endlessly extended to unrelated, but unavoidable conduct. The dissent in Jones largely ignores this aspect of the test, and in so doing fails to confront the compelling need to develop a test that prevents Robinson from being rendered toothless by permitting the drafter of legislation to evade Robinson’s protection by merely rephrasing status as conduct.
In Jones, the Court considered “whether the Eighth Amendment right to be free from cruel and unusual punishment prohibits enforcement of [a] law as applied to homeless individuals involuntarily sitting, lying, or sleeping on the street due to the unavailability of shelter in Los Angeles.” Jones, 444 F.3d at 1120. Applying the two part test, the Jones court concluded that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds, the City may not enforce [the law] at all times and places throughout the City against homeless individuals involuntarily sitting, lying, and sleeping in
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public,” id. at 1138, because it would criminalize their status as homeless individuals, id. at
1132, 1137.
The operative acts under consideration in Jones – (1) sleeping, sitting, and lying and (2)
being in public – were integral to status and unavoidable results of it. With respect to sleeping,
the Jones court concluded that “they are universal and unavoidable consequences of being
human,” (emphasis added) at least here where the prospect of “avoid[ing] sitting, lying, and
sleeping for days, weeks, or months at a time to comply with the City’s ordinance, as if human
beings could remain in perpetual motion” is “an impossibility….” Id. at 1136-37.8
Likewise, being without a home to go to is integral to the status of homelessness9 and, as
the evidence showed, was an unavoidable result for the plaintiffs in Jones, as there was a “strong
evidentiary showing of a substantial shortage of shelter” which made being outside
unavoidable.10 Id. at 1132. Consequently, as applied, the ordinance was unconstitutional under
8 Rather than characterize sleeping as itself conduct integral to and the unavoidable result of being human, the United States District Court for the District of Oregon in Anderson. v. City of Portland, allowed an attack on the constitutionality of the enforcement of an anti-camping provision in a materially similar context to here and Jones, by drawing from the plurality in Powell and calling such conduct “involuntary and innocent” and not “conduct that society has an interest in preventing.” Civ. No. 08-1447-AA, 2009 U.S. Dist. LEXIS 67519, at **19-20 (July 31, 2009) (emphasis added) (internal quotation marks omitted). See also Pottinger 810 F. Supp. at 1565 (holding “[a]s long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something which they may not be convicted under the Eighth Amendment – sleeping, eating and other innocent conduct”). 9 The Jones court cites to the Stewart B. McKinney Homeless Assistance Act of 1987 § 103(a), 42 U.S.C. § 11302(a) (2000), which defines homelessness as “an individual who lacks a fixed, regular, and adequate nighttime residence.…” 10 The dissent in Jones decried the “unavoidable results” prong, suggesting that it operated to preclude the city from criminalizing sleeping outside unless it provided shelter space to the homeless. To the contrary, it is the “integral to” prong that accomplishes the prohibition, by generally concluding that sleeping outside is essentially the same as two statuses – being human MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 7

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the Eighth Amendment for criminalizing conduct “integral to and the unavoidable result of”
status.11
II. UNDER THE “VOLUNTARINESS” PRONG OF THE EIGHTH AMENDMENT TEST, EMERGENCY SHELTER BEDS OFFERED AT RELIGIOUS SHELTERS MUST NOT BE TREATED AS “AVAILABLE”
The Eighth Amendment test under Jones requires a determination of whether conduct is
unavoidable and, in applying that test to whether homeless individuals can avoid sleeping outside
by making use of emergency shelter beds, emergency shelter beds that are offered at religious
shelters must be excluded. The application of the Eighth Amendment to the Municipal
Ordinances cannot be read in a way that pits two constitutional rights against each other. See
Simmons v. United States, 390 U.S. 377, 393-94 (holding “it [is] intolerable that one
constitutional right should have to be surrendered in order to assert another” in the context of the
government’s argument that Simmons had waived his Fifth Amendment right against self-
and being homeless. However, the “unavoidable results” prong narrows the class of potentially protected status-conduct and permits criminal sanction in the event that the status-conduct is not unavoidable at the time. In this respect, a whole swath of otherwise protected status-conduct may be criminalized because it is not unavoidable (e.g. sleeping in certain prohibited locations outside, even as to homeless persons, when other outside locations are available). 11 This reading also brings constitutional law into consonance with international law. The Supreme Court has implicitly recognized the relevance of international standards and U.S. treaty obligations by invoking such authorities in Roper v. Simmons, 543 U.S. 551, 576-77 (2005) and Lawrence v. Texas, 539 U.S. 558, 572-73 (2003). Domestic law also should be interpreted whenever possible to not conflict with ratified treaties. See Roper, 543 U.S. at 575; Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). The U.S. Interagency Council on Homeless has concluded that criminalization of the homeless may “violate international human rights law, specifically the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR).” UNITED STATES INTERAGENCY COUNCIL ON HOMELESSNESS, SEARCHING OUT SOLUTIONS: CONSTRUCTIVE ALTERNATIVES TO THE CRIMINALIZATION OF HOMELESSNESS. The U.N. Human Rights Committee has also raised concerns that criminalization of the homeless may violate Article 7 of the ICCPR regarding “cruel, inhuman, and degrading treatment.” U.N. Human Rights Committee, Concluding observations on the fourth report of the United States of America, ¶ 19, U.N. Doc. CCPR/C/USA/CO/4 (2014).
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incrimination when he testified to vindicate his Fourth Amendment rights at a hearing on a motion to suppress evidence); Fowle v. United States, 410 F.2d 48, 54-55 (9th Cir. 1969) (rejecting the government’s position because it would place the criminal defendant “on the horns of the dilemma, compelling him, impermissibly to choose between constitutional rights and suffer prejudice from any choice which he has and exercises.”) Yet if emergency shelter beds offered at religious shelters are treated as “available” under the Jones test, it creates a conflict between the Eighth Amendment right against criminalization of status and the prohibition against religious coercion as established in Establishment Clause jurisprudence.
The Supreme Court set forth the test for Establishment Clause violations in Lemon v. Kurtzman, holding that government acts must have a “secular legislative purpose,” and may not have a “principal or primary effect” which either “advances [or] inhibits religion,” or causes “an excessive government entanglement” with religion. 403 U.S. 602, 612-13 (1971), aff’d, 411 U.S. 192 (1973). And in Inouye v. Kemna, the Ninth Circuit held that a state act that coerced involvement in a religiously-affiliated program by threatening criminal punishment violated that test. 504 F.3d 705, 712 (9th Cir. 2007).
In Inouye, the defendant was required to attend a religion-based substance abuse program (Alcoholics Anonymous / Narcotics Anonymous or “AA/NA”) as part of his parole, and when the defendant objected on religious grounds, his parole officer recommended revoking parole. Id. at 710. The Ninth Circuit adopted a three-part test in determining that the parole officer’s action violated the Establishment Clause: (1) the parole officer’s actions constituted state action because the action was performed in the officer’s official state capacity; (2) the actions were coercive in that Inouye would be subject to penalty for his refusal; and (3) the object of the coercion (AA/NA) was religious rather than secular as the program was based in a “higher MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 9

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power.” Id. at 713-14. The court, while sympathetic to AA/NA and its benevolent mission, nevertheless concluded that the state could not coerce someone to attend its functions.12 Likewise, for the purposes of determining whether being outside is an avoidable consequence under the Eighth Amendment test, religious shelter beds must be excluded or else the law would operate to condition one’s enjoyment of his Eighth Amendment protections on the waiving of his First Amendment rights. Either he would be subject to citation, or he would be forced to associate with religious messages and activities.
ARGUMENT
III. THE MUNICIPAL ORDINANCES CRIMINALIZE STATUS IN VIOLATION OF THE EIGHTH AMENDMENT BY CITING PERSONS WHO ARE HOMELESS AND SUFFERING FROM MENTAL OR PHYSICAL DISABILITIES FOR SLEEPING OUTSIDE Like in Jones, the Municipal Ordinances criminalize homelessness in violation of the
Eighth Amendment because they are applied to homeless individuals (1) doing nothing more than resting, lying down, or sleeping and (2) for whom shelter beds are unavailable.
A. The Municipal Ordinances Have Been and May be Applied Against Individuals Merely for Resting, Lying Down, or Sleeping
Under the Municipal Ordinances, a homeless individual may receive a citation for merely resting, lying down, or sleeping outside. See, e.g., Exhs. 59, 60, 61.
These Eighth Amendment violations continue because officers are unaware of the constitutional limits to enforcing the Municipal Ordinances against individuals for merely resting, lying down, or sleeping outside. Diana Lachiondo, Director of Community Partnerships
12 Indeed, the court wrote specifically, “While we in no way denigrate the fine work of AA/NA, attendance in their programs may not be coerced by the state.” Inouye, 504 F.3d at 714. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 10

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and the City’s 30(b)(6) witness, testified when asked about how a person sleeping with just a blanket over himself would be treated under the Municipal Ordinances: “I couldn’t say for sure how our bike officers view blankets, if they are considered indicia of camping” and “[t]o be perfectly honest, I am not that familiar with the Disorderly Conduct Ordinance.” Exh. 18 at 143:22-24; 144:3-4.
In determining whether to issue a citation, the best guidance the BPD could offer is to rely on the “totality of the circumstances,” which did not exclude conduct protected under Jones. Exh. 63 at 96:13-14. Officer Shuler was unable to say whether a person lying on the ground with no other possessions could be cited for camping. Exh. 91 at 44:10-14. Officer Walker, a supervisor, admitted that he did not provide guidance as to how many camping indicia were required under the Camping Ordinance. Exh. 63 at 96:10-14. He stated that merely having a sleeping bag or even covering oneself with tree branches could count, and that just being concealed could be an indication of camping. Exh. 63 at 50:13-20, 54:25-55:4, 55:25-56:5. Another officer agreed that sleeping in a sleeping bag could be enough, based on a number of factors including “kind of going along with how things are done.” Exh. 65 at 37:12-24; see also Exh. 63 at 48:23-49:4.
B. Emergency Shelter Beds are Often and May Be Unavailable to Homeless Individuals in Boise
On any given night, it is likely that for some portion of Boise’s homeless individuals, emergency shelter beds will be unavailable. Emergency shelter beds may be unavailable for any number of reasons. First and foremost, there are more homeless individuals in Boise than emergency shelter beds, but beds can also be unavailable to homeless individuals due to religious objections and mental and physical disabilities.
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1. There Is a Shortage of Emergency Shelter Beds in Boise Plaintiffs’ expert, Martha R. Burt, Ph.D., produced an unrebutted report (“Expert Report” or “Report”) comparing the number of homeless individuals in Boise (measured by annual Pointin-Time Surveys conducted in Boise (the “PIT Surveys”)) to the number of emergency shelter beds (reported in the Housing and Urban Development Housing Inventory Charts (“HIC Reports”)). Exh. 29 at 6-8. PIT Surveys are the only basis Defendants use for estimating the number of homeless individuals in the city, and they have no alternative to it. Exh. 18 at 32:1333:3, 52:7-11; Exh. 19 at 118:18-24; Exh. 16 at 54:6-10. In her Report, Dr. Burt concluded that in 2011, homeless individuals outnumbered emergency shelter beds by 48%. In 2012, homeless individuals outnumbered emergency shelter beds by 43%. In 2013, homeless individuals outnumbered emergency shelter beds by 29%. And in 2014, homeless individuals outnumbered emergency shelter beds by 29% as well. Exh. 29 at 8, Table 4.
These comparisons underestimate the delta between the number of homeless individuals and the number of shelter beds. Indeed, Dr. Burt concluded that the Boise PIT Surveys likely underestimated the number of homeless individuals in Boise. Defendants did not rebut the Expert Report, nor have they presented evidence to contradict the volumes of corroborating evidence found throughout the record that establish that the PIT Surveys undercounted the number of homeless, including: (1) email documents involving Beth Geagan and her employees from 2015 demonstrating that volunteers canceled at the last minute, Exh. 41, that volunteers who wanted to participate could not attend training because of when the trainings were held,
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Exh. 40, and noting safety concerns for volunteers, Exh. 44;13 (2) hard copy documents from the 2014 PIT Survey noting miscommunication and confusion, and seeking additional guidance on how to conduct the PIT Survey, Exhs. 42, 43; (3) testimony that the police increased patrols during the PIT Survey, likely thwarting participation, Exh. 44; (4) evidence that there was an inadequate number of volunteers prior to 2015, Exhs. 38, 39; and (5) evidence that certain locations where homeless individuals frequent were not checked. Statement of Undisputed Material Facts (“SUMF”) ¶ 18(b).
The real number of homeless individuals on each of the nights of the PIT Survey is likely significantly greater than the reported count. In addition, some homeless individuals are simply not included in the PIT Survey because they are in jail that night. Exh. 20 at 88:19-25, 91:2392:1; Exh. 15 at 30, 53. Not only has the Ada County Jail in Boise noted an increase in the jail’s homeless population in January – up to 113 homeless individuals in January 2014, Exh. 49 at 5 but counts taken at the jail on the night of the PIT Survey 2014 also show that there 72 homeless people were in jail on that night that would not be reflected on the PIT Survey. SUMF ¶ 19. The homeless shelters simply cannot accommodate these individuals, as they are regularly full. Yet to exclude homeless people in jail when evaluating the need for emergency shelter beds in Boise essentially allows the City to skirt the Constitution and effectively eviscerate Eighth Amendment protection for homeless individuals.
The discrepancies between the PIT Survey and the HIC count are borne out on a daily basis year-round. Interfaith Sanctuary and BRM regularly report that their emergency shelter
13 Defendants failed to preserve Beth Geagan’s emails prior to January 27, 2015; plaintiffs are therefore unable to point to email documents from that time period further corroborating the undercount. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 13

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services are at-or-near full utilization for the year every year. See Exhs. 50, 52. Interfaith Sanctuary has reported at a number of Continuum of Care meetings throughout the year every year that it is at, or near, capacity and has turned homeless individuals away. Exh. 51. Even though RoL has reported that it may have over a dozen homeless men had to sleep on the floor every night, Exh. 54 at 4, BRM refuses to self-report as full. Exh. 69; Exh. 70 at 60:24-25.
2. Nearly Two-Thirds of the Shelter Beds in Boise Are Offered at Religious Shelters and Must Be Excluded from the Eighth Amendment Analysis
For Eighth Amendment purposes, the shortage of emergency shelter beds is overwhelmingly more pronounced than indicated above because a significant majority of the emergency shelter beds counted above must be excluded since they are offered at religious shelters. The only non-religious shelter in Boise is Interfaith Sanctuary, and it has only 96 emergency shelter beds for adult individuals. See Exh. 25 ¶¶ 2, 6.
During the pendency of this litigation, Boise Rescue Mission argued – successfully – in a separate case before the Ninth Circuit that it was a religious organization that qualified for an exemption from the Fair Housing Act’s prohibitions on religious discrimination and could therefore discriminate against those using its shelter beds on religious grounds. Intermountain Fair House. Council v. Boise Rescue Mission Ministries, 657 F.3d 988, 996-97 (9th Cir. 2011) (finding that because BRM qualified as a religious organization, its preferential practices for emergency beds were exempt from the Fair Housing Act). The same facts that allowed the Ninth Circuit to conclude that BRM preferred people of its own religion at the homeless shelter and that BRM qualified as an exempt religious organization in Intermountain, unequivocally demonstrate that BRM is a “religious” rather than “secular” object under the Inouye
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Establishment Clause test, which means state actors are precluded from coercing attendance at BRM as a matter of law.
BRM was incorporated “‘for the worship of God, the teaching and preaching of the Word of God, the winning of people to a personal faith in the Lord Jesus Christ and in the spiritual improvement of mankind….’” Exh. 24-1 ¶ 3. Its religiously-based mission is made known to every homeless individual who comes through its doors. Indeed, even the BRM intake form states, “Welcome to the River of Life Rescue Mission where our first object is to introduce everyone to our Lord and Savior Jesus Christ.” Exh. 89 at 2. A Bible quotation headlines the shelter rules given to every homeless person using the facilities. Exh. 88 at 4. The BRM shelters “offer[] a variety of religious services, such as chapel services, pre-meal prayers and morning devotions,” Exh. 88 at 4, and religion figures extensively into BRM’s operations, from messages and symbols on the walls, Exh. 90, to various rules for residents tied to chapel services scheduled during designated non-smoking time, Exh. 89 at 5; Exh. 88 at 4.14
It follows that BRM’s shelter beds must be excluded from the voluntariness prong of the Eighth Amendment analysis, because homeless individuals cannot be forced to choose between receiving a criminal citation or subjecting themselves to BRM’s religious mission. In other words, BRM’s shelter beds are not available and cannot be used as the “option” that renders a homeless person’s lack of sleeping quarters on a given night “voluntary” under the Jones framework. Just as the state could not revoke Inouye’s parole for his refusal to attend a religiously-based AA/NA program, it cannot criminally cite homeless individuals for refusing to
14 Because of this rule, some homeless individuals cannot escape the chapel services because they are assigned to mats on the floor in the dining room – the same location as where the religious services take place. See Exh. 89 at 5; Exh. 27 at 150:4-11. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 15

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subject himself to the religiously-based messages and activities at religious shelters. See Inouye, 504 F.3d at 712. In so doing, it would pit homeless individuals’ First Amendment and Eighth Amendment rights against each other, a constitutionally unconscionable result. Simmons, 390 U.S. at 393-94.
3. Shelter Beds Are Often and May Be Unavailable to Individuals Due to Mental Illness or Physical Disability
Plaintiffs also produced the unrebutted expert report of David Kent, M.D. who believes “conservatively” that “seventy-five percent of the homeless population in Boise suffer from physical or mental disabilities and/or coexisting alcohol and polysubstance abuse disorders, which may be a form of self-medication.” Exh. 1 at 2. These physical and mental issues prevent some homeless individuals from accessing emergency shelter beds. In fact, “[t]he very nature of a homeless person’s mental illness make it extremely difficult for them to live in shelters for limited or sustained periods of time.” Exh. 1 at 3. Accordingly, Dr. Kent concluded that mental and physical disabilities make it so that “homeless persons cannot access… temporary shelter beds” that otherwise might be available. Id. For these individuals, sleeping outside while homeless may be unavoidable even though emergency shelter beds are available for others.15
C. The Municipal Ordinances Have Been and May Be Enforced against Homeless Individuals when Emergency Shelter Beds Are Unavailable
The record contains numerous instances in which individuals were cited under the Municipal Ordinances the morning after Interfaith Sanctuary reported that it was full. See, e.g.,
15 Indeed, beds may be unavailable to certain homeless individuals while available to others for a variety of reasons in addition to mental and physical disabilities: the only beds available are for persons of the other sex; the individual reached the time limit for staying at a shelter; a shelter does not allow an individual to stay there, even simply because they are unable to care for that person; or the individual has legal restrictions limiting them from being near someone who is in the shelter. See SUMF ¶¶ 31, 32; Exh. 8 at 7. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT - 16

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Exhs. 71-74, 86, 92, 96-100. Many of these citations reflect the views of police officers that the citation was nevertheless permissible because BRM had not reported that its shelters were full. See, e.g., Exhs. 71-74 (explicitly noting that Sanctuary was full but BRM had space); see also Exhs. 93-94 (noting BRM had space). Of course, BRM’s failure to report that its emergency shelter beds as full is meaningless because BRM refuses to do so. Further, it also crystallizes the constitutional conflict raised supra pp. 8-10, that for the individuals cited on these days, the Eighth Amendment is being interpreted and applied in a way that pits it against the Establishment Clause (discussed in Legal Background, II, supra pp. 8-10).
Likewise, citations in the record have been given to homeless individuals the police officers recognize as having mental illnesses. See, e.g., Exhs. 78-80. This occurs in part because officers have scant if any instruction on how to apply this concern in the field, even if they were inclined to apply the limitation. Officers have received inadequate training on recognizing mental illnesses and disabilities and identifying when those disabilities might prevent homeless individuals from staying in shelters, Exh. 37 at 102:25-103:6, which results in inconsistent enforcement entirely subject to each officer’s often uninformed, subjective understanding. Moreover, while the BPD has recognized that its disability policy should require officers to contact the shelters to determine if they can accommodate a particular individual’s disability, Exh. 75 at 79:4-9, there is actually no requirement to do so. Exh. 2 at 108:18-22.
IV. DECLARATORY AND INJUNCTIVE RELIEF IS APPROPRIATE BECAUSE AS A MATTER OF LAW AND UNDISPUTED FACT PLAINTIFFS HAVE A LEGITIMATE THREAT OF HAVING THEIR EIGHTH AMENDMENT RIGHTS VIOLATED Plaintiffs Anderson and Martin are homeless individuals who have been cited under the
Municipal Ordinances. SUMF ¶ 2. The fact that Boise has a shortage of available shelter beds
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places them at significant risk of being cited in the future under the same ordinances. Both Plaintiffs have voiced objections to BRM’s efforts to convert residents to their religious beliefs and claim to have been required to listen to and attend religious services at BRM, or else be forced to leave the shelter. SUMF ¶¶ 4-5; Exh. 9 at 10-11, 25-26.
REDACTED
Declaratory relief is appropriate “(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” McGrawEdison Co. v. Preformed Line Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966), cert. denied, 385 U.S. 919 (1966) (quoting Edwin Borchard, Declaratory Judgments 299 (2d ed. 1941)). Bilbrey v. Brown, 738 F.2d 1462, 1470 (9th Cir. 1984). Plaintiffs’ request for declaratory relief would undoubtedly serve the useful purpose of clarifying that Plaintiffs’ Eighth Amendment rights to not be subject to criminal citation for sleeping outside when shelter beds are unavailable is guaranteed and enforceable, and that the existence of ill-defined, non-functional ordinances and policies does not adequately safeguard those rights.
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Moreover, according to well-established principles of equity, Plaintiffs require a permanent injunction because “[p]ermanent injunctive relief is warranted where, as here, defendant's past and present misconduct indicates a strong likelihood of future violations.” Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 564 (9th Cir. 1990). The ordinances and policies may have changed, but the results are the same. Injunctive relief is necessary to prevent further violations of Plaintiffs’ Eighth Amendment rights.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion for Summary Judgment and issue injunctive relief against Defendants.

Submitted this 30th day of April, 2015

/s/_Marguerite Sullivan Marguerite Sullivan Attorney for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of April, 2015, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent a Notice of Electronic Filing to the persons listed below.
Howard A. Belodoff IDAHO LEGAL AID SERVICES, INC. Email: howardbelodoff@idaholegalaid.org
Krysta C. Copeland LATHAM & WATKINS LLP Email: krysta.copeland@lw.com
Allen Gardner LATHAM & WATKINS LLP Email: allen.gardner@lw.com
Brady J. Hall MOORE & ELIA, LLP Email: brady@mbelaw.net
Kelley K. Fleming BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Daniel I. Levy LATHAM & WATKINS LLP Email: daniel.levy@lw.com
Michael W. Moore MOORE & ELIA, LLP Email: mike@mbelaw.net
Scott B. Muir BOISE CITY ATTORNEY’S OFFICE Email: boisecityattorney@cityofboise.org
Eric S. Tars NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY Email: etars@nlchp.org
Katherine Cheng LATHAM & WATKINS LLP Email: katherine.cheng@lw.com
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Case 1:09-cv-00540-REB Document 243-2 Filed 04/30/15 Page 25 of 25 PUBLIC RECORD VERSION
Greer Donley LATHAM & WATKINS LLP Email: greer.donley@lw.com Scott Jones LATHAM & WATKINS LLP Email: scott.jones@lw.com
/s/ Marguerite Sullivan
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 UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

ROBERT MARTIN and ROBERT ANDERSON,
Plaintiffs, vs. CITY OF BOISE, Defendant.

Case No. 1:09-cv-00540-REB
MEMORANDUM DECISION AND ORDER

I. Background and Summary of Decision This case, filed in 2009, has a long procedural history that includes multiple dispositive motions, multiple amendments of the Plaintiffs’ Complaint, the withdrawal and addition of numerous attorneys representing the various parties, dismissal of several parties, and an appeal of a substantive ruling against the plaintiffs followed by a remand from the Ninth Circuit Court of Appeals. The facts and legal issues are well known to the parties and set forth in more detail in the Court’s prior Orders. See Dkts. 152, 170, 286. Pending are Plaintiffs’ Motion for Summary Judgment (Dkt. 243) and Defendant’s Motion for Dispositive Relief1 (Dkt. 229), with associated motions to strike particular

1 The City’s Motion is made under Federal Rules of Civil Procedure 12(b)(1) and 56. MEMORANDUM DECISION & ORDER - 1

evidence filed by both parties (Dkts. 253, 264, 268).2 The case now includes two remaining Plaintiffs: Robert Martin (“Martin”) and Robert Anderson (“Anderson”). The only remaining Defendant is the City of Boise (the “City”). See Order (Dkt. 286). The remaining claims seeks prospective relief in (1) a declaration under 28 U.S.C. § 2201 that Boise City Code § 9-10-02 and §6-01-05(A) (collectively the “Ordinances”) violate the Eighth Amendment’s prohibition against cruel and unusual punishment, and (2) a permanent injunction enjoining the City of Boise from enforcing the Ordinances.3 See Amd. Compl., pp. 22-23 (Dkt. 171).
The City argues that a threshold matter precludes the case from going any further at this point – specifically, that the case should be dismissed because the Plaintiffs lack standing. The City also argues that even if the Plaintiffs have standing to pursue the remaining claim, it has nonetheless been mooted and, regardless, Plaintiffs’ claims fails on the merits. (Dkt. 229). Plaintiffs argue they have standing, the case is not moot, and they should be granted summary judgment as a matter of law based upon “undisputed”
2 After the hearing on these motions, several additional motions were submitted (Dkts. 283, 287, 288, 289), some of which will be resolved here, and others by separate order.
3 Plaintiffs seek a declaration that the “Ordinances are unconstitutional under the Eighth Amendment to the extent they apply to and are enforced against individuals for whom shelter beds are unavailable whether because (1) there are fewer emergency shelter beds than there are homeless individuals or (2) mental illness or physical disability.” Pls.’ Mem. Mot. Summ. Jdgmt., p. 3 (Dkt. 243-2). In making this argument, Plaintiffs primarily rely on cases involving “as applied” challenges to the constitutionality of statutes. See, e.g., id., p. 7. Only nighttime enforcement of the Ordinances is at issue. See Bell v. City of Boise, 709 F.3d 890, 896 (9th Cir. 2013). MEMORANDUM DECISION & ORDER - 2

material facts. See Pls.’ Resp. (Dkt. 258); Pls.’ Mem. Mot. Summ. Jdgmt., p. 17 (Dkt. 243-2).
Martin and Anderson allege that they face a threat of being cited for violating the Boise City Ordinances prohibiting camping and sleeping at night in public places. See Boise City Code §§ 6-01-05(A); 9-10-02. Under applicable law, they have a right to bring such a claim only if they have suffered an injury-in-fact sufficient to provide the Plaintiffs legal standing under Article III of the federal Constitution. Any such claim made upon an alleged threatened injury (as argued by Martin and Anderson) must be “certainly impending” or there must be a “substantial risk that the harm will occur.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150, n.5 (2013). The injury-in-fact must also be concrete and particularized, and actual or imminent. Bennett v. Spear, 520 U.S. 154, 167 (1997).
The Court concludes for the reasons described to follow that neither Martin nor Anderson is facing such a concrete, particularized or imminent injury, and therefore neither Martin nor Anderson has standing to bring a constitutional challenge to the Ordinances. Of central importance to that ruling is the fact that the Ordinances, by their very terms, are not to be enforced when a homeless individual “is on public property and there is no available overnight shelter.” Boise City Code §§ 6-01-05(A); 9-10-02. Thus, the Ordinances are not to be enforced when the shelters are full. Additionally, neither Plaintiff has shown that he cannot or will not stay in one or more of the available shelters, if there is space available, or that he has a disability that prevents him from accessing
MEMORANDUM DECISION & ORDER - 3

shelter space. Thus, there is no actual or imminent threat that either Plaintiff will be cited for violating the Ordinances. In the absence of such a threat, Plaintiffs cannot allege a sufficient injury-in-fact to establish legal standing to bring their claims. Therefore, the Court lacks jurisdiction to consider the merits of the claim that the Ordinances violate certain constitutional protections, and the case must be dismissed.
II. Standing A. Introduction
The City argues that neither Mr. Martin, nor Mr. Anderson is at risk of any “certainly impending” injury and therefore each lacks the requisite Article III standing to seek prospective relief. B. Standards of Law
Federal Rule 12(b) permits dismissal of a complaint where the federal court has no jurisdiction to consider the claims raised in the complaint. Under our Constitution federal courts may only consider and decide “[c]ases” and “[c]ontroversies.” U.S. Const., Art. III, § 2. See also Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). Martin and Anderson have the burden of proving the existence of a case or controversy sufficient to confer Article III standing, at all stages of the litigation. Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994). To do so, there must be: (1) the existence of an injury-in-fact that is concrete and particularized, and actual or imminent; and (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Bennett v. Spear, 520 U.S. 154, 167
MEMORANDUM DECISION & ORDER - 4

(1997); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). If Plaintiffs
lack standing at this particular stage of the lawsuit, notwithstanding the motion practice
and discovery efforts that have transpired along the way, then the Court lacks jurisdiction to consider the merits of their remaining claims.4
C. Defining the Alleged Injury
The injury-in-fact requirement ensures a “personal stake in the outcome of the
controversy.” Warth v. Seldin, 422 U.S. 490, 498 (1975) (internal quotation marks
omitted). “An injury sufficient to satisfy Article III must be concrete and particularized
and actual or imminent, not conjectural or hypothetical.” Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2341 (2014) (citation and internal quotation marks omitted).
The injury Plaintiffs allege is a threat of being cited for violating the Boise City
Ordinances prohibiting camping and sleeping at night in public places. Their claims are,
therefore, based upon an allegation of a future injury, which can amount to an injury-in-
fact but only if the threatened injury is “certainly impending” or there is a “substantial risk that the harm will occur.”5 Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1150, n.5
4 There have been a number of additional plaintiffs, in addition to Martin and Anderson, at various times in the pendency of this case. They have been dismissed for various reasons, including reasons related to the very fact of their homeless status – i.e., that they live in a nomadic manner and transient status, and that either by choice or circumstance they have fallen out of contact with their counsel. As a result, such persons were unavailable to participate in the proceedings of the case, such as, by way of example, being available for the taking of their deposition. Whatever have been the circumstances leading to this point, the Court’s focus in the context of the City’s challenge to the standing of the two remaining Plaintiffs must be only upon those two Plaintiffs.
5 The Supreme Court has explained that its prior holdings “do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about.” MEMORANDUM DECISION & ORDER - 5

(2013) (citations and internal quotation marks omitted). “Although imminence is
concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which
is to ensure that the alleged injury is not too speculative for Article III purposes – that the
injury is certainly impending.” Id. at 1147. An injury-in-fact is sufficiently alleged
where there is “an intention to engage in a course of conduct arguably affected with a
constitutional interest, but proscribed by a statute, and there exists a credible threat of
prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979).
Both Martin and Anderson were cited under prior versions of the Ordinances, which
have since been revised.6 The current ordinances prohibit enforcement when “the
individual is on public property and there is no available overnight shelter.”7 Boise City
Code §§ 6-01-05(A); 9-10-02. Neither Martin nor Anderson has been cited under the
revised Ordinances.8 Although “past wrongs are evidence bearing on whether there is a
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1150, n.5 (2013). Rather, in some instances, the Court has “found standing based on a substantial risk that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.” Id. (citations and internal quotation marks omitted).
6 Plaintiff Anderson was cited in 2007 under the camping ordinance. Jones Declr., Ex. 7 (Dkt. 244–6). Plaintiff Martin was cited in 2009 under the disorderly conduct and camping ordinances. Jones Declr., Ex. 8 (Dkt. 244–7). Mr. Martin also received a camping citation in the fall of 2012. Jones Declr., Ex. 2, p. 143 (Dkt. 259–1). The Ordinances were revised in 2014.
7 Both ordinances define the term “available overnight shelter” as “a public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness at no charge.” Boise City Code §§ 6-01-05(A); 9-10-02. But, they go on to state that “[i]f the individual cannot utilize the overnight shelter space due to voluntary actions such as intoxication, drug use, unruly behavior, or violation of shelter rules, the overnight shelter space shall still be considered available.” Id.
8 Other individuals have received citations since the Ordinances were revised in 2014. See, e.g., Jones Declr., Ex. 71 (Dkt. 246-20). However, as discussed earlier, the Court here is
MEMORANDUM DECISION & ORDER - 6

real and immediate threat of repeated injury”, Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (citing O'Shea v. Littleton, 414 U.S. 488, 496 (1974)), here the Ordinances have materially changed since Plaintiffs were issued citations. D. Robert Martin Does Not Have Standing
Martin resided in Boise when Plaintiffs filed this case in 2009, but he has been living in Post Falls or Hayden, Idaho, since November 2013. Jones Declr., Ex. 2, p. 107 (Dkt. 259-1); Martin Aff., ¶ 8 (Dkt. 258–5). His having moved from Boise does not preclude the possibility of standing to pursue the lawsuit’s remaining claims, because he made several trips to Boise in 2014 to visit his minor son and he plans to return to Boise in the future for the same purpose. Jones Declr., Ex. 2, pp. 111, 114, 181 (“I come down [to Boise] regularly to be able to see my son and everything, so I know I'll be coming back” to visit Boise).9 See also Martin Aff., ¶¶ 3–7 (Dkt. 258–5). During his prior return trips to Boise, Martin has stayed at the Budget Inn (with help from his attorneys), Jones Declr., Ex. 2, p. 113 (Dkt. 259-1), has also stayed with friends, id., p. 119, and, on the last four or five trips to Boise, stayed in his car10, id. p. 120, 142. At no time, however, during the
considering the standing of the two remaining Plaintiffs and not other parties who may have claims similar to Plaintiffs’ claims.
9 Martin says that if his employment and financial situation does not improve he will consider moving back to Boise. Martin Aff., ¶ 9 (Dkt. 258–5). However, this is too tenuous a statement to manifest an intention to move to Boise, nor is there any suggestion beyond supposition that he would move to Boise and camp outside even when there is shelter space available.
10 Martin no longer has a vehicle. MEMORANDUM DECISION & ORDER - 7

four or five trips he has made to Boise in the last year, has he “camped outside,” id., p.
143, and he has no stated plans to do so on future trips to Boise.
Martin says he is concerned that if he comes to Boise and is unable to find shelter at
a friend’s home or an emergency shelter, then he may receive a citation for violating the
Ordinances. Martin Aff., ¶ 10 (Dkt. 258–5). His concern, however, is entirely
speculative because he is willing (and has in the past) stayed at the homeless shelters.
Martin testified that he would stay at the Sanctuary and would consider staying at the
River of Life,11 if they would let him stay there.12 Hall Declr., pp.160–61 (Dkt. 230-1) (if
River of Life allowed Martin to stay at that shelter, he would “for a day or two, if need
be”); but see id. at p. 164 (later stating, without explanation as to why, that he might stay
at the River of Life and “it’s possible [he might] not”). The directors of both the River of
Life and Interfaith Sanctuary shelters have said that Martin can stay at their respective
11 There are three emergency shelters in Boise - Interfaith Sanctuary (or the “Sanctuary”),which houses both men and women, and the two shelters operated by the Boise Rescue Mission – the River of Life shelter for men and the City Lights shelter for women and children. Pls.’ St. Mat’l Facts, ¶ 10.
12 Martin also testified that whether he would stay at the Sanctuary would depend on if his ex-wife and her new husband were staying there as well, but there is no indication in the record about how often that circumstance might occur. Additionally, it would only impact Martin if the other shelter, River of Life, was full. Hall Declr., pp.160–61 (Dkt. 230-1). Plaintiffs have argued that the River of Life never reports as full because it does not turn people away. See Jones Declr., Ex. 69 (Boise Rescue Mission Wepage dated 4/17/15) (“Even in our busiest months, it’s our policy to never turn down anyone for food or shelter due to lack of space.”) (Dkt. 246-18). However, Martin’s decision to not utilize available shelter space due to his personal concerns about being near his ex-wife do not implicate constitutional concerns. The Court has considered the fact that Martin described that when going through his divorce, he was the subject of a no-contact order requiring that he stay away from his wife. There is nothing in the record, however, to suggest that there is any current no-contact order, even though Martin may choose on his own to keep his distance from his ex-wife.
MEMORANDUM DECISION & ORDER - 8

shelters in the future, if necessary. Roscoe Aff., ¶ 7 (Dkt. 239) (testimony of the Boise Rescue Mission’s CEO); Sorrels Aff., ¶ 6 (Dkt. 240) (testimony of the Sanctuary’s Executive Director that Martin is not barred from staying there).13 And, Martin confirmed that, in the last four years, he has not been barred from the Sanctuary because of a rule violation. Jones Declr., p. 139 (Dkt 259-1). Thus, Martin can stay at the emergency shelters.
As previously described, the Ordinances are not to be enforced against a particular individual when “the individual is on public property and there is no available overnight shelter.” Boise City Code §§ 6-01-05(A); 9-10-02. Hence, Martin’s concern that he will be cited under the Ordinances if he is unable to stay with a friend or in a shelter is not reasonable given that the Ordinances specifically provide that they shall not be enforced when there is no available overnight shelter. Moreover, evidence in the record suggests there is no known citation of a homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity. Allen Aff., ¶ 8 (Dkt. 242); see also Bailly Aff., ¶ 7 (Dkt. 232); Hall Declr., Ex. 7, pp. 74-75; id., Ex. 5, p. 65. The record also indicates that there has not been a single night when all three shelters in Boise called in to report they
13 Martin was not certain that he was placed on a “ban list” at River of Light, but he thought he had been told sometime prior to 2010 that he should not come back to that facility because he “had a problem getting up in the morning”. Hall Declr., Ex. 1, pp. 129-30 (Dkt. 230-1). However, Martin currently is not barred from staying at either shelter. Dkts. 239, 240 (Sorrels and Roscoe Affidavits). MEMORANDUM DECISION & ORDER - 9

were simultaneously full for men, women or families. Id.; see also Allen Supp. Aff., ¶ 4
(Dkt. 257-5).
Martin’s counsel argues though that, even if there is room at a shelter, shelter may be
nonetheless unavailable to Martin because the Boise Rescue Mission is a religious
organization and Martin has religious objections to staying there. Both Ordinances state
that “[i]f the individual cannot utilize the overnight shelter space due to voluntary actions
such as intoxication, drug use, unruly behavior, or violation of shelter rules, the overnight
shelter space shall still be considered available.” Boise City Code §§ 6-01-05(A);
9-10-02. They do not address whether the Ordinances will be enforced if individuals
have other reasons for not seeking shelter, such as an objection to the religious basis of the Boise Rescue Mission or a mental illness or disability that might cause issues.14
Regardless, Martin testified that he finds nothing “objectionable” about the rules at
River of Life because the rules are “pretty fair for the most part and everything.” Hall
Declr., Ex. 1, pp. 130-31 (Dkt. 230-1). Instead, his primary complaint with River of Life
is the rule that during “chapel” (a religious service which lasts an hour) he is not able to
go outside and have a cigarette. Id. That rule does not, however, require that Martin
attend chapel at the River of Life (which he acknowledges) and he did not attend chapel
14 The Boise Police Department’s Special Order also prohibits officers from enforcing the Ordinances when a person is on public property and there is no available overnight shelter. The Special Order states that, “to qualify as ‘available’, the space must take into account sex, marital and familial status, and disabilities.” Bell v. City of Boise, 709 F.3d 890, 894–95 (9th Cir. 2013). “The Special Order further provides that, if an individual cannot use available space because of a disability or a shelter’s length-of-stay restrictions, the space should not be considered available.” Id. But, the space will be considered available if the individual cannot use the space “due to voluntary actions such as intoxication, drug use or unruly behavior.” Id. MEMORANDUM DECISION & ORDER - 10

at the River of Life when he stayed there previously, even though he had the impression that “people”15 wanted him to attend. Jones Declr., Ex. 5, p. 124 (Dkt. 250-1). See also Hall Declr., Ex. 1, p. 129 (Dkt. 230-1) (Martin acknowledged that nobody has ever said he had to go to chapel at River of Life). Additionally, even though Martin has been diagnosed with certain mental health disorders, nothing in the record suggests that mental health issues have prevented him from accessing the shelters. See Pls.’ St. Facts,16 ¶ 3 (Dkt. 248).
In short, Martin’s alleged future injury is too speculative for Article III purposes. He has not alleged that a mental disorder or other disability interferes with his ability to obtain shelter at the Sanctuary or River of Life, or that he will not stay at any of the shelters even if space is available, or that any “objection” he many have to the religious mission of the River of Life will certainly cause him not to seek shelter there if needed. Additionally, although Martin does allege that he may again be homeless on his visits to Boise, there is no allegation that moves beyond supposition built on speculation that he will then remain outdoors on public property, in violation of one or more of the Ordinances, when the shelters are not full.17
15 Mr. Martin did not specify whether these “people” were other individuals seeking shelter or directors or volunteers at the shelter.
16 The part of this document referring to Plaintiffs’ medical records has been redacted from the public record and, at this time, is filed under seal. Accordingly, the Court has not stated more specifically what the record reflects.
17 “[F]or purposes of assessing the likelihood that state authorities will reinflict a given injury, [the Supreme Court] generally ha[s] been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.” MEMORANDUM DECISION & ORDER - 11

To carry standing, Martin must demonstrate “an intention to engage in a course of conduct arguably affected with a constitutional interest,” but proscribed by a statute. Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) (emphasis added). Here, camping or sleeping at night in a public place is permitted, not proscribed, by the Ordinance if there is no shelter space available. Accordingly, the conduct Martin alleges he might have to engage in if he cannot stay at a friend’s house or the shelters are full — i.e., camping or sleeping in a public place — is not proscribed by the Ordinance, and there cannot be a credible threat of prosecution under these circumstances. See Babbitt, 442 U.S. at 298. See also Pennell v. City of San Jose, 485 U.S. 1, 8 (1988) (quoting Babbitt, 442 U.S. at 298) (internal quotation marks omitted) (“[A] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.”)).
Finally, the declaratory relief requested—that the “Ordinances are unconstitutional under the Eighth Amendment to the extent they apply to and are enforced against individuals for whom shelter beds are unavailable whether because (1) there are fewer emergency shelter beds than there are homeless individuals or (2) mental illness or
Honig v. Doe, 484 U.S. 305, 320 (1988) (alterations added) (citing Los Angeles v. Lyons, 461 U.S. 95, 105, 106 (1983) (no threat that party seeking injunction barring police use of chokeholds would be stopped again for traffic violation or other offense, or would resist arrest if stopped); Murphy v. Hunt, 455 U.S. at 484 (no reason to believe that party challenging denial of pre-trial bail “will once again be in a position to demand bail”); O'Shea v. Littleton, 414 U.S. 488, 497 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws)).
MEMORANDUM DECISION & ORDER - 12

physical disability”— does not align with the inchoate alleged injury. See Pls.’ Mem.
Mot. Summ. Jdgmt., p. 3 (Dkt. 243-2); but compare declaratory relief requested in Rev.
2d Amd. Compl, pp. 22-23 (Dkt. 172). First, there is no evidence that shelter beds are
unavailable to Martin because of a mental illness or physical disability, so the declaratory
relief in that regard would not redress his particular alleged injury. Second, when there
are not enough emergency shelter beds available, regardless of the reason, the Ordinances
by their plain terms may not be enforced. The City’s evidence is that the Ordinances are
not enforced under these circumstances. Thus, it does not matter (but also does not
condone nor condemn the sad commentary that flows from the difficulties faced by Boise
City, or any community, in sheltering the homeless population) whether there are fewer
beds in shelters than there are homeless individuals for purposes of standing.18 If the
Ordinances are not to be enforced when the shelters are full, those Ordinances do not
inflict a constitutional injury upon these particular plaintiffs who are homeless and do not
have a disability or other issue of Constitutional interest that the evidence shows prevents
them from accessing the shelters.
18 This is a permissible consideration in assessing the merits of Plaintiffs’ claims. Part of what the Court may consider if it applies the framework from Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006) vacated by 505 F.3d 1006 (9th Cir. 2007), is whether the homeless Plaintiffs have no choice but to be present in the City’s public spaces. See Order, p. 8 (Dkt. 115). Plaintiffs also discuss overcrowding at the shelters and the use of overflow mats, but that evidence and arguments relate to the merits of Plaintiffs’ claims and not Plaintiffs’ ability to demonstrate that they are threatened with injury from the alleged unconstitutional enforcement of the Ordinances at issue that is fairly traceable to the City’s conduct. To satisfy the causation requirement, plaintiffs “must show that the injury is causally linked or ‘fairly traceable’” to the City’s Ordinances, “and not the result of independent choices by a party not before the Court.” Nw. Requirements Utilities v. F.E.R.C., No. 13-70391, 2015 WL 4716753, at *5 (9th Cir. Aug. 10, 2015). MEMORANDUM DECISION & ORDER - 13

E. Robert Anderson Does Not Have Standing
Anderson has not been warned by law enforcement officials regarding conduct that
might violate the Ordinances in the four years preceding his most recent deposition. Hall
Declr., Ex. 2, p. 101 (Dkt. 230–2). At the time of his most recent deposition, Anderson
had housing because he lived with his girlfriend.19 Hall Declr., Ex. 2, pp. 81, 84–87 (Dkt.
230–2). His most recent Declaration describes that his girlfriend moved in February of
2015, which led to Anderson living with a friend for several months before obtaining
shelter at the River of Life for a night and then at the Sanctuary.20 (Dkt. 296–1).
Unfortunately, Anderson is again homeless and relies on the shelters to provide him a
place to sleep.21
However, as is the case with Martin, Anderson also will seek a place at a shelter
instead of sleeping outside, and he has successfully done so.22 Hall Declr., Ex. 2, p. 103
19 Mr. Anderson did not pay rent to his girlfriend and his only “income” was food stamps. He is not eligible for government housing assistance and has been denied a request for social security benefits. Hall Declr., Ex. 2, pp. 81, 84-87 (Dkt. 230-2).
20 This Declaration provides relevant information for the Court to assess Anderson’s standing, and standing must exist throughout every stage of litigation, which means the Court must reassess the facts relevant to standing as they change. Accordingly, the Court has considered the information provided. Plaintiffs’ Motion seeking permission to file the Declaration is granted.
21 The City’s mootness argument rests on its assertion that Plaintiffs’ claims for prospective relief is moot because Plaintiffs are no longer living unsheltered in Boise. See Def.’s Mem., p. 6 (Dkt. 229-2). Because those circumstances have changed with regard to Anderson, the Court has not considered whether this case is now moot based on Plaintiffs’ living situations.
22 Anderson reported that he slept on the streets in 2014 for three nights even though he could have accessed a shelter on those nights, because he was ashamed to return to the shelters. Hall Declr., Ex. 2, p. 70 (Dkt. 230-2). The reason for his reluctance to seek shelter for three nights does not evince an unwillingness to stay at shelters in the future (even if one assumed that
MEMORANDUM DECISION & ORDER - 14

(Dkt. 230–2). There is nothing to prevent Anderson from seeking shelter at the River of Life or the Sanctuary, see Dkt. 239, ¶ 7; Dkt. 240, ¶ 6, although he does not like the rules at the River of Life that constrain his ability to smoke before he goes to bed, nor does he like the River of Life’s “religious policies”. Hall Declr., Ex. 2, p. 73 (Dkt. 230–2).
Anderson was not forced to engage in prayer at the River of Life during his March 2014 stay, but says he was forced to attend chapel services. Hall Declr., Ex. 2, p. 76 (Dkt. 230–2). But his statement in that regard was clarified in that he said that to join a particular treatment program that would allow him to stay for an extended period on the upper floors of the River of Life, he was required to attend chapel and other religious services. However, he decided not to participate in that particular program. He was, nonetheless, still permitted to stay overnight on the first floor without joining the program, subject, of course, to the other rules of the shelter. Id., pp. 72–79, 111.23 In other words, he objected to the requirements placed on those who stay longer than 17 days and then choose to enter the program allowing access to treatment program housing in the upstairs portion of the facility. Regardless, Anderson has stayed at the River of Life recently and has stated he will do so in the future. Id. at p. 110. Additionally,
such an emotion, understandable as it may be, is a cognizable basis for avoiding shelter when shelter was available, under a standing analysis), nor has Anderson made any such assertion. Indeed, Anderson has been residing at the Sanctuary shelter since May of 2015. Anderson Declr. (Dkt. 296-1).
23 Anderson explained that he was required to attend chapel services at a stay in 2007, before the Boise Rescue Mission was “changed . . . over” to River of Life, and before this litigation commenced. Hall Declr., Ex. 2, p. 74 (Dkt. 230-2). He has stayed at the facility since that time. MEMORANDUM DECISION & ORDER - 15

although he has been diagnosed with certain mental health disorders, nothing suggests
that mental health issues have prevented Anderson from utilizing the shelters. See Pls.’
St. Facts, 3 (Dkt. 248).
As with Martin, Anderson is worried he will receive a camping citation if there is no
shelter space available and he has to camp or sleep in a public place. But also as with
Martin, the revised Ordinances do not allow Boise City Police Officers to cite Anderson
when no shelter space is available. Anderson is willing to stay at either available shelter,
even if he prefers the Sanctuary and dislikes some of the policies at the River of Life. In
such circumstances, Anderson’s worry that he might be cited under the Ordinances does
not amount to a substantial risk of imminent harm sufficient to demonstrate the injury-in-
fact required for Article III standing.
F. Conclusion on Standing Issues
That these particular Plaintiffs lack standing does not mean, for all purposes, that
other putative plaintiffs also would lack standing to pursue similar claims. There may, for
instance, be an individual with a mental or physical condition that has interfered with her
or her ability to seek access to or stay at shelters, with such difficulties likely to continue in the future.24 Or, perhaps a homeless individual will refuse to stay at the River of Life
24 See, e.g., Jones Declr., Ex. 80 (Dkt. 247-4) (police report describing contact with an apparently homeless individual who advised that he has PTSD and cannot stay at a shelter); id., Ex. 77 (Dkt. 247-1) (list of individuals who are barred from the Interfaith Sanctuary and, if coupled with an objection to the religious practices at River of Life, may be able to demonstrate threatened injury); id., Ex. 78 (Police report noting probable cause for camping violation for homeless person who apparently suffers from a mental illness because he “said he had not tried to get into any shelters because they try to get him onto illegal drugs and steal his medicine”); id., Ex. 72 (Dkt. 246-21) (homeless individual cited when the Sanctuary was full because River MEMORANDUM DECISION & ORDER - 16

and can support a claim that the facility requires participation in religious practices for homeless individuals to stay in temporary housing there. However, this Court cannot entertain and decide controversies on possibilities, and it is similarly inappropriate for the Court to surmise conclusively whether such circumstances would be sufficient for other persons to establish standing. The Court will not substitute the possibility that another person might have standing to make the claims raised here as a substitute for the shortcomings of the standing claimed for Martin and Anderson. Instead, the Court must do exactly what has been done in this decision – consider the evidence and the allegations of future threatened harm to determine whether such a record rises to the level required for these particular plaintiffs to establish standing in the circumstances of this case. That answer, on this record, is “no.” Because the Plaintiffs lack standing to pursue their claims, the Court lacks jurisdiction to consider the merits of those claims and this case will be DISMISSED. G. Miscellaneous Motions
Before the hearing, Plaintiffs filed a Motion for Leave to File Supplemental Authority related to the standing issue (Dkt. 283). The City acknowledges that the Court has discretion to consider the three cases Plaintiffs brought to the Court’s attention, but asks that the Court decline to do so. (Dkt. 293). The Court concludes that it is appropriate to consider the additional case authority, and has done so. The City is not prejudiced in any substantive manner by the presentation of the supplemental authority,
of Light had capacity, but individual was “barred” from the facility). MEMORANDUM DECISION & ORDER - 17

and has had the opportunity to try and distinguish these cases from the facts of the present case. See Dkt. 293.
After the hearing, Plaintiffs filed a Motion for Leave to Identify Record Citations made at the hearing (Dkt. 289), for the stated purpose of assisting the Court in efficiently reviewing the record. Plaintiffs filed an appendix identifying the pages of the record that support their arguments. The appendix is a useful tool to compile evidence already in the record, it does not add to the record. Accordingly, Court will grant the Motion and has considered the appendix.
Plaintiffs also asked that the Court strike the affidavits of Jayne Sorrels and Jacob Lang, filed in support of the City’s opposition to Plaintiffs’ Motion for Summary Judgment. See Dkts. 257-3; 257-4. Plaintiffs argue that these affidavits contain (1) expert opinion testimony they are unqualified to provide and (2) statements for which they lack personal knowledge and foundation or constitute hearsay. (Dkt. 268-1). However, the Court did not rely on any of this evidence to find that Plaintiffs lack standing in this case, and the challenged affidavits relate primarily to issues going to the merits of this case.25 Accordingly, Plaintiffs’ Motion to Strike (Dkt. 268) is moot.
Additionally, having considered the evidence relevant to the standing issue and having ruled in the City’s favor, the Court further finds that the City’s Motions to Strike also are moot.
25 Although the Court has cited to Sorrels’s Affidavit, the citation was not to any evidence objected to as unqualified expert testimony. MEMORANDUM DECISION & ORDER - 18

III. Order For the reasons set forth above, IT IS HEREBY ORDERED: (1) Defendant’s Motion for Dispositive Relief (Dkt. 229) is GRANTED; (2) Plaintiffs’ Motion for Summary Judgment (Dkt. 243) is DENIED. (3) Defendant’s Motions to Strike (Dkts. 254 & 263) are DENIED as MOOT. (4) Plaintiffs’ Motion to Strike (Dkt. 268) is DENIED as MOOT. (5) Plaintiffs Motion for Leave to File Supplemental Authority (Dkt. 283) is GRANTED. (6) Plaintiffs’ Motion for Leave to Identify Record Citations (Dkt. 289) is GRANTED. (7) Plaintiffs’ Motion seeking permission to file the Robert Anderson Declaration (Dkt. 296) is GRANTED. A separate judgment will be filed contemporaneously with this Order.
DATED: September 28, 2015
Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION & ORDER - 19

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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.

No. 15-35845 D.C. No.
1:09-cv-00540REB
OPINION

Appeal from the United States District Court for the District of Idaho
Ronald E. Bush, Chief Magistrate Judge, Presiding
Argued and Submitted July 13, 2017 Portland, Oregon
Filed September 4, 2018
Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.
Opinion by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Owens

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MARTIN V. CITY OF BOISE

SUMMARY*

Civil Rights
The panel affirmed in part and reversed in part the district court’s summary judgment 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

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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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.

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MARTIN V. CITY OF BOISE

COUNSEL

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 DefendantAppellee.

OPINION
BERZON, Circuit Judge:
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
— Anatole France, The Red Lily
We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.
The plaintiffs-appellants are six current or former residents of the City of Boise (“the City”), who are homeless or have recently been homeless. Each plaintiff alleges that,

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between 2007 and 2009, he or she was cited by Boise police for violating one or both of two city ordinances. The first, Boise City Code § 9-10-02 (the “Camping Ordinance”), makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” The Camping Ordinance defines “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” Id. The second, Boise City Code § 601-05 (the “Disorderly Conduct Ordinance”), bans “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.”

All plaintiffs seek retrospective relief for their previous citations under the ordinances. Two of the plaintiffs, Robert Anderson and Robert Martin, allege that they expect to be cited under the ordinances again in the future and seek declaratory and injunctive relief against future prosecution.

In Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), a panel of this court concluded that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]” for the homeless, Los Angeles could not enforce a similar ordinance against homeless individuals “for involuntarily sitting, lying, and sleeping in public.” Jones is not binding on us, as there was an underlying settlement between the parties and our opinion was vacated as a result. We agree with Jones’s reasoning and central conclusion, however, and so 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

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MARTIN V. CITY OF BOISE

them. Two of the plaintiffs, we further hold, may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right.

I. Background

The district court granted summary judgment to the City on all claims. We therefore review the record in the light most favorable to the plaintiffs. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).

Boise has a significant and increasing homeless population. According to the Point-in-Time Count (“PIT Count”) conducted by the Idaho Housing and Finance Association, there were 753 homeless individuals in Ada County — the county of which Boise is the seat — in January 2014, 46 of whom were “unsheltered,” or living in places unsuited to human habitation such as parks or sidewalks. In 2016, the last year for which data is available, there were 867 homeless individuals counted in Ada County, 125 of whom were unsheltered.1 The PIT Count likely underestimates the number of homeless individuals in Ada

1 The United States Department of Housing and Urban Development (“HUD”) requires local homeless assistance and prevention networks to conduct an annual count of homeless individuals on one night each January, known as the PIT Count, as a condition of receiving federal funds. State, local, and federal governmental entities, as well as private service providers, rely on the PIT Count as a “critical source of data” on homelessness in the United States. The parties acknowledge that the PIT Count is not always precise. The City’s Director of Community Partnerships, Diana Lachiondo, testified that the PIT Count is “not always the . . . best resource for numbers,” but also stated that “the point-in-time count is our best snapshot” for counting the number of homeless individuals in a particular region, and that she “cannot give . . . any other number with any kind of confidence.”

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County. It is “widely recognized that a one-night point in time count will undercount the homeless population,” as many homeless individuals may have access to temporary housing on a given night, and as weather conditions may affect the number of available volunteers and the number of homeless people staying at shelters or accessing services on the night of the count.

There are currently three homeless shelters in the City of Boise offering emergency shelter services, all run by private, nonprofit organizations. As far as the record reveals, these three shelters are the only shelters in Ada County.

One shelter — “Sanctuary” — is operated by Interfaith Sanctuary Housing Services, Inc. The shelter is open to men, women, and children of all faiths, and does not impose any religious requirements on its residents. Sanctuary has 96 beds reserved for individual men and women, with several additional beds reserved for families. The shelter uses floor mats when it reaches capacity with beds.

Because of its limited capacity, Sanctuary frequently has to turn away homeless people seeking shelter. In 2010, Sanctuary reached full capacity in the men’s area “at least half of every month,” and the women’s area reached capacity “almost every night of the week.” In 2014, the shelter reported that it was full for men, women, or both on 38% of nights. Sanctuary provides beds first to people who spent the previous night at Sanctuary. At 9:00 pm each night, it allots any remaining beds to those who added their names to the shelter’s waiting list.

The other two shelters in Boise are both operated by the Boise Rescue Mission (“BRM”), a Christian nonprofit

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MARTIN V. CITY OF BOISE

organization. One of those shelters, the River of Life Rescue Mission (“River of Life”), is open exclusively to men; the other, the City Light Home for Women and Children (“City Light”), shelters women and children only.

BRM’s facilities provide two primary “programs” for the homeless, the Emergency Services Program and the New Life Discipleship Program.2 The Emergency Services Program provides temporary shelter, food, and clothing to anyone in need. Christian religious services are offered to those seeking shelter through the Emergency Services Program. The shelters display messages and iconography on the walls, and the intake form for emergency shelter guests includes a religious message.3

Homeless individuals may check in to either BRM facility between 4:00 and 5:30 pm. Those who arrive at BRM facilities between 5:30 and 8:00 pm may be denied shelter, depending on the reason for their late arrival; generally, anyone arriving after 8:00 pm is denied shelter.

Except in winter, male guests in the Emergency Services Program may stay at River of Life for up to 17 consecutive nights; women and children in the Emergency Services Program may stay at City Light for up to 30 consecutive

2 The record suggests that BRM provides some limited additional non-emergency shelter programming which, like the Discipleship Program, has overtly religious components.
3 The intake form states in relevant part that “We are a Gospel Rescue Mission. Gospel means ‘Good News,’ and the Good News is that Jesus saves us from sin past, present, and future. We would like to share the Good News with you. Have you heard of Jesus? . . . Would you like to know more about him?”

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nights. After the time limit is reached, homeless individuals who do not join the Discipleship Program may not return to a BRM shelter for at least 30 days.4 Participants in the Emergency Services Program must return to the shelter every night during the applicable 17-day or 30-day period; if a resident fails to check in to a BRM shelter each night, that resident is prohibited from staying overnight at that shelter for 30 days. BRM’s rules on the length of a person’s stay in the Emergency Services Program are suspended during the winter.

The Discipleship Program is an “intensive, Christ-based residential recovery program” of which “[r]eligious study is the very essence.” The record does not indicate any limit to how long a member of the Discipleship Program may stay at a BRM shelter.

The River of Life shelter contains 148 beds for emergency use, along with 40 floor mats for overflow; 78 additional beds serve those in non-emergency shelter programs such as the Discipleship Program. The City Light shelter has 110 beds for emergency services, as well as 40 floor mats to handle overflow and 38 beds for women in non-emergency shelter programs. All told, Boise’s three homeless shelters contain 354 beds and 92 overflow mats for homeless individuals.

A. The Plaintiffs

Plaintiffs Robert Martin, Robert Anderson, Lawrence Lee Smith, Basil E. Humphrey, Pamela S. Hawkes, and Janet F.

4 The parties dispute the extent to which BRM actually enforces the 17- and 30-day limits.

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Bell are all homeless individuals who have lived in or around Boise since at least 2007. Between 2007 and 2009, each plaintiff was convicted at least once of violating the Camping Ordinance, the Disorderly Conduct Ordinance, or both. With one exception, all plaintiffs were sentenced to time served for all convictions; on two occasions, Hawkes was sentenced to one additional day in jail. During the same period, Hawkes was cited, but not convicted, under the Camping Ordinance, and Martin was cited, but not convicted, under the Disorderly Conduct Ordinance.

Plaintiff Robert Anderson currently lives in Boise; he is homeless and has often relied on Boise’s shelters for housing. In the summer of 2007, Anderson stayed at River of Life as part of the Emergency Services Program until he reached the shelter’s 17-day limit for male guests. Anderson testified that during his 2007 stay at River of Life, he was required to attend chapel services before he was permitted to eat dinner. At the conclusion of his 17-day stay, Anderson declined to enter the Discipleship Program because of his religious beliefs. As Anderson was barred by the shelter’s policies from returning to River of Life for 30 days, he slept outside for the next several weeks. On September 1, 2007, Anderson was cited under the Camping Ordinance. He pled guilty to violating the Camping Ordinance and paid a $25 fine; he did not appeal his conviction.

Plaintiff Robert Martin is a former resident of Boise who currently lives in Post Falls, Idaho. Martin returns frequently to Boise to visit his minor son. In March of 2009, Martin was cited under the Camping Ordinance for sleeping outside; he was cited again in 2012 under the same ordinance.

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B. Procedural History

The plaintiffs filed this action in the United States District Court for the District of Idaho in October of 2009. All plaintiffs alleged that their previous citations under the Camping Ordinance and the Disorderly Conduct Ordinance violated the Cruel and Unusual Punishments Clause of the Eighth Amendment, and sought damages for those alleged violations under 42 U.S.C. § 1983. Cf. Jones, 444 F.3d at 1138. Anderson and Martin also sought prospective declaratory and injunctive relief precluding future enforcement of the ordinances under the same statute and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202.

After this litigation began, the Boise Police Department promulgated a new “Special Order,” effective as of January 1, 2010, that prohibited enforcement of either the Camping Ordinance or the Disorderly Conduct Ordinance against any homeless person on public property on any night when no shelter had “an available overnight space.” City police implemented the Special Order through a two-step procedure known as the “Shelter Protocol.”

Under the Shelter Protocol, if any shelter in Boise reaches capacity on a given night, that shelter will so notify the police at roughly 11:00 pm. Each shelter has discretion to determine whether it is full, and Boise police have no other mechanism or criteria for gauging whether a shelter is full. Since the Shelter Protocol was adopted, Sanctuary has reported that it was full on almost 40% of nights. Although BRM agreed to the Shelter Protocol, its internal policy is never to turn any person away because of a lack of space, and neither BRM shelter has ever reported that it was full.

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If all shelters are full on the same night, police are to refrain from enforcing either ordinance. Presumably because the BRM shelters have not reported full, Boise police continue to issue citations regularly under both ordinances.

In July 2011, the district court granted summary judgment to the City. It held that the plaintiffs’ claims for retrospective relief were barred under the Rooker-Feldman doctrine and that their claims for prospective relief were mooted by the Special Order and the Shelter Protocol. Bell v. City of Boise, 834 F. Supp. 2d 1103 (D. Idaho 2011). On appeal, we reversed and remanded. Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013). We held that the district court erred in dismissing the plaintiffs’ claims under the Rooker-Feldman doctrine. Id. at 897. In so holding, we expressly declined to consider whether the favorable-termination requirement from Heck v. Humphrey, 512 U.S. 477 (1994), applied to the plaintiffs’ claims for retrospective relief. Instead, we left the issue for the district court on remand. Bell, 709 F.3d at 897 n.11.

Bell further held that the plaintiffs’ claims for prospective relief were not moot. The City had not met its “heavy burden” of demonstrating that the challenged conduct — enforcement of the two ordinances against homeless individuals with no access to shelter — “could not reasonably be expected to recur.” Id. at 898, 901 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). We emphasized that the Special Order was a statement of administrative policy and so could be amended or reversed at any time by the Boise Chief of Police. Id. at 899–900.

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Finally, Bell rejected the City’s argument that the plaintiffs lacked standing to seek prospective relief because they were no longer homeless. Id. at 901 & n.12. We noted that, on summary judgment, the plaintiffs “need not establish that they in fact have standing, but only that there is a genuine issue of material fact as to the standing elements.” Id. (citation omitted).

On remand, the district court again granted summary judgment to the City on the plaintiffs’ § 1983 claims. The court observed that Heck requires a § 1983 plaintiff seeking damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” to demonstrate that “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486–87. According to the district court, “a judgment finding the Ordinances unconstitutional . . . necessarily would imply the invalidity of Plaintiffs’ [previous] convictions under those ordinances,” and the plaintiffs therefore were required to demonstrate that their convictions or sentences had already been invalidated. As none of the plaintiffs had raised an Eighth Amendment challenge as a defense to criminal prosecution, nor had any plaintiff successfully appealed their conviction, the district court held that all of the plaintiffs’ claims for retrospective relief were barred by Heck. The district court also rejected as barred by Heck the plaintiffs’ claim for prospective injunctive relief under § 1983, reasoning that “a ruling in favor of Plaintiffs on even a prospective § 1983 claim would demonstrate the invalidity of any confinement stemming from those convictions.”

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Finally, the district court determined that, although Heck did not bar relief under the Declaratory Judgment Act, Martin and Anderson now lack standing to pursue such relief. The linchpin of this holding was that the Camping Ordinance and the Disorderly Conduct Ordinance were both amended in 2014 to codify the Special Order’s mandate that “[l]aw enforcement officers shall not enforce [the ordinances] when the individual is on public property and there is no available overnight shelter.” Boise City Code §§ 6-01-05, 9-10-02. Because the ordinances, as amended, permitted camping or sleeping in a public place when no shelter space was available, the court held that there was no “credible threat” of future prosecution. “If the Ordinances are not to be enforced when the shelters are full, those Ordinances do not inflict a constitutional injury upon these particular plaintiffs . . . .” The court emphasized that the record “suggests there is no known citation of a homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity” and that “there has not been a single night when all three shelters in Boise called in to report they were simultaneously full for men, women or families.”

This appeal followed.

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II. Discussion

A. Standing

We first consider whether any of the plaintiffs has standing to pursue prospective relief.5 We conclude that there are sufficient opposing facts in the record to create a genuine issue of material fact as to whether Martin and Anderson face a credible threat of prosecution under one or both ordinances in the future at a time when they are unable to stay at any Boise homeless shelter.6

“To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (citation omitted). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is certainly impending.” Id. (citation omitted). A plaintiff need not, however, await an arrest or prosecution to have standing to challenge the constitutionality of a criminal statute. “When the plaintiff has alleged an

5 Standing to pursue retrospective relief is not in doubt. The only threshold question affecting the availability of a claim for retrospective relief — a question we address in the next section — is whether such relief is barred by the doctrine established in Heck.
6 Although the SAC is somewhat ambiguous regarding which of the plaintiffs seeks prospective relief, counsel for the plaintiffs made clear at oral argument that only two of the plaintiffs, Martin and Anderson, seek such relief, and the district court considered the standing question with respect to Martin and Anderson only.

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intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citation and internal quotation marks omitted). To defeat a motion for summary judgment premised on an alleged lack of standing, plaintiffs “ need not establish that they in fact have standing, but only that there is a genuine question of material fact as to the standing elements.” Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).

In dismissing Martin and Anderson’s claims for declaratory relief for lack of standing, the district court emphasized that Boise’s ordinances, as amended in 2014, preclude the City from issuing a citation when there is no available space at a shelter, and there is consequently no risk that either Martin or Anderson will be cited under such circumstances in the future. Viewing the record in the light most favorable to the plaintiffs, we cannot agree.

Although the 2014 amendments preclude the City from enforcing the ordinances when there is no room available at any shelter, the record demonstrates that the City is wholly reliant on the shelters to self-report when they are full. It is undisputed that Sanctuary is full as to men on a substantial percentage of nights, perhaps as high as 50%. The City nevertheless emphasizes that since the adoption of the Shelter Protocol in 2010, the BRM facilities, River of Life and City Light, have never reported that they are full, and BRM states that it will never turn people away due to lack space.

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The plaintiffs have pointed to substantial evidence in the record, however, indicating that whether or not the BRM facilities are ever full or turn homeless individuals away for lack of space, they do refuse to shelter homeless people who exhaust the number of days allotted by the facilities. Specifically, the plaintiffs allege, and the City does not dispute, that it is BRM’s policy to limit men to 17 consecutive days in the Emergency Services Program, after which they cannot return to River of Life for 30 days; City Light has a similar 30-day limit for women and children. Anderson testified that BRM has enforced this policy against him in the past, forcing him to sleep outdoors.

The plaintiffs have adduced further evidence indicating that River of Life permits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part of the New Life Discipleship program, which has a mandatory religious focus. For example, there is evidence that participants in the New Life Program are not allowed to spend days at Corpus Christi, a local Catholic program, “because it’s . . . a different sect.” There are also facts in dispute concerning whether the Emergency Services Program itself has a religious component. Although the City argues strenuously that the Emergency Services Program is secular, Anderson testified to the contrary; he stated that he was once required to attend chapel before being permitted to eat dinner at the River of Life shelter. Both Martin and Anderson have objected to the overall religious atmosphere of the River of Life shelter, including the Christian messaging on the shelter’s intake form and the Christian iconography on the shelter walls. A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment. Inouye v.

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Kemna, 504 F.3d 705, 712–13 (9th Cir. 2007). Yet at the conclusion of a 17-day stay at River of Life, or a 30-day stay at City Light, an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM programming that is antithetical to his or her religious beliefs.

The 17-day and 30-day limits are not the only BRM policies which functionally limit access to BRM facilities even when space is nominally available. River of Life also turns individuals away if they voluntarily leave the shelter before the 17-day limit and then attempt to return within 30 days. An individual who voluntarily leaves a BRM facility for any reason — perhaps because temporary shelter is available at Sanctuary, or with friends or family, or in a hotel — cannot immediately return to the shelter if circumstances change. Moreover, BRM’s facilities may deny shelter to any individual who arrives after 5:30 pm, and generally will deny shelter to anyone arriving after 8:00 pm. Sanctuary, however, does not assign beds to persons on its waiting list until 9:00 pm. Thus, by the time a homeless individual on the Sanctuary waiting list discovers that the shelter has no room available, it may be too late to seek shelter at either BRM facility.

So, even if we credit the City’s evidence that BRM’s facilities have never been “full,” and that the City has never cited any person under the ordinances who could not obtain shelter “due to a lack of shelter capacity,” there remains a genuine issue of material fact as to whether homeless individuals in Boise run a credible risk of being issued a citation on a night when Sanctuary is full and they have been denied entry to a BRM facility for reasons other than shelter capacity. If so, then as a practical matter, no shelter is

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available. We note that despite the Shelter Protocol and the amendments to both ordinances, the City continues regularly to issue citations for violating both ordinances; during the first three months of 2015, the Boise Police Department issued over 175 such citations.

The City argues that Martin faces little risk of prosecution under either ordinance because he has not lived in Boise since 2013. Martin states, however, that he is still homeless and still visits Boise several times a year to visit his minor son, and that he has continued to seek shelter at Sanctuary and River of Life. Although Martin may no longer spend enough time in Boise to risk running afoul of BRM’s 17-day limit, he testified that he has unsuccessfully sought shelter at River of Life after being placed on Sanctuary’s waiting list, only to discover later in the evening that Sanctuary had no available beds. Should Martin return to Boise to visit his son, there is a reasonable possibility that he might again seek shelter at Sanctuary, only to discover (after BRM has closed for the night) that Sanctuary has no space for him. Anderson, for his part, continues to live in Boise and states that he remains homeless.

We conclude that both Martin and Anderson have demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to Boise’s homeless shelters; both plaintiffs therefore have standing to seek prospective relief.

B. Heck v. Humphrey

We turn next to the impact of Heck v. Humphrey and its progeny on this case. With regard to retrospective relief, the

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plaintiffs maintain that Heck should not bar their claims because, with one exception, all of the plaintiffs were sentenced to time served.7 It would therefore have been impossible for the plaintiffs to obtain federal habeas relief, as any petition for a writ of habeas corpus must be filed while the petitioner is “in custody pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a); Spencer v. Kemna, 523 U.S. 1, 7, 17–18 (1998). With regard to prospective relief, the plaintiffs emphasize that they seek only equitable protection against future enforcement of an allegedly unconstitutional statute, and not to invalidate any prior conviction under the same statute. We hold that although the Heck line of cases precludes most — but not all — of the plaintiffs’ requests for retrospective relief, that doctrine has no application to the plaintiffs’ request for an injunction enjoining prospective enforcement of the ordinances.

1. The Heck Doctrine

A long line of Supreme Court case law, beginning with Preiser v. Rodriguez, 411 U.S. 475 (1973), holds that a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his or her confinement, but must instead seek federal habeas corpus relief or analogous state relief. Id. at 477, 500. Preiser considered whether a prison inmate could bring a § 1983 action seeking an injunction to remedy an unconstitutional deprivation of goodtime conduct credits. Observing that habeas corpus is the traditional instrument to obtain release from unlawful

7 Plaintiff Pamela Hawkes was convicted of violating the Camping Ordinance or Disorderly Conduct Ordinance on twelve occasions; although she was usually sentenced to time served, she was twice sentenced to one additional day in jail.

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confinement, Preiser recognized an implicit exception from § 1983’s broad scope for actions that lie “within the core of habeas corpus” — specifically, challenges to the “fact or duration” of confinement. Id. at 487, 500. The Supreme Court subsequently held, however, that although Preiser barred inmates from obtaining an injunction to restore goodtime credits via a § 1983 action, Preiser did not “preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.” Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (emphasis added).

Heck addressed a § 1983 action brought by an inmate seeking compensatory and punitive damages. The inmate alleged that state and county officials had engaged in unlawful investigations and knowing destruction of exculpatory evidence. Heck, 512 U.S. at 479. The Court in Heck analogized a § 1983 action of this type, which called into question the validity of an underlying conviction, to a cause of action for malicious prosecution, id. at 483–84, and went on to hold that, as with a malicious prosecution claim, a plaintiff in such an action must demonstrate a favorable termination of the criminal proceedings before seeking tort relief, id. at 486–87. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id.

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Edwards v. Balisok, 520 U.S. 641 (1997) extended Heck’s holding to claims for declaratory relief. Id. at 648. The plaintiff in Edwards alleged that he had been deprived of earned good-time credits without due process of law, because the decisionmaker in disciplinary proceedings had concealed exculpatory evidence. Because the plaintiff’s claim for declaratory relief was “based on allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment imposed,” Edwards held, it was “not cognizable under § 1983.” Id. Edwards went on to hold, however, that a requested injunction requiring prison officials to date-stamp witness statements was not Heck-barred, reasoning that a “prayer for such prospective relief will not ‘necessarily imply’ the invalidity of a previous loss of goodtime credits, and so may properly be brought under § 1983.” Id. (emphasis added).

Most recently, Wilkinson v. Dotson, 544 U.S. 74 (2005), stated that Heck bars § 1983 suits even when the relief sought is prospective injunctive or declaratory relief, “if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81–82 (emphasis omitted). But Wilkinson held that the plaintiffs in that case could seek a prospective injunction compelling the state to comply with constitutional requirements in parole proceedings in the future. The Court observed that the prisoners’ claims for future relief, “if successful, will not necessarily imply the invalidity of confinement or shorten its duration.” Id. at 82.

The Supreme Court did not, in these cases or any other, conclusively determine whether Heck’s favorable-termination requirement applies to convicts who have no practical opportunity to challenge their conviction or sentence via a

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petition for habeas corpus. See Muhammad v. Close, 540 U.S. 749, 752 & n.2 (2004). But in Spencer, five Justices suggested that Heck may not apply in such circumstances. Spencer, 523 U.S. at 3.

The petitioner in Spencer had filed a federal habeas petition seeking to invalidate an order revoking his parole. While the habeas petition was pending, the petitioner’s term of imprisonment expired, and his habeas petition was consequently dismissed as moot. Justice Souter wrote a concurring opinion in which three other Justices joined, addressing the petitioner’s argument that if his habeas petition were mooted by his release, any § 1983 action would be barred under Heck, yet he would no longer have access to a federal habeas forum to challenge the validity of his parole revocation. Id. at 18–19 (Souter, J., concurring). Justice Souter stated that in his view “Heck has no such effect,” and that “a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.” Id. at 21. Justice Stevens, dissenting, stated that he would have held the habeas petition in Spencer not moot, but agreed that “[g]iven the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear . . . that he may bring an action under 42 U.S.C. § 1983.” Id. at 25 n.8 (Stevens, J., dissenting).

Relying on the concurring and dissenting opinions in Spencer, we have held that the “unavailability of a remedy in habeas corpus because of mootness” permitted a plaintiff released from custody to maintain a § 1983 action for damages, “even though success in that action would imply the

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invalidity of the disciplinary proceeding that caused revocation of his good-time credits.” Nonnette v. Small, 316 F.3d 872, 876 (9th Cir. 2002). But we have limited Nonnette in recent years. Most notably, we held in Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015), that even where a plaintiff had no practical opportunity to pursue federal habeas relief while detained because of the short duration of his confinement, Heck bars a § 1983 action that would imply the invalidity of a prior conviction if the plaintiff could have sought invalidation of the underlying conviction via direct appeal or state post-conviction relief, but did not do so. Id. at 1192 & n.12.

2. Retrospective Relief

Here, the majority of the plaintiffs’ claims for retrospective relief are governed squarely by Lyall. It is undisputed that all the plaintiffs not only failed to challenge their convictions on direct appeal but expressly waived the right to do so as a condition of their guilty pleas. The plaintiffs have made no showing that any of their convictions were invalidated via state post-conviction relief. We therefore hold that all but two of the plaintiffs’ claims for damages are foreclosed under Lyall.

Two of the plaintiffs, however, Robert Martin and Pamela Hawkes, also received citations under the ordinances that were dismissed before the state obtained a conviction. Hawkes was cited for violating the Camping Ordinance on July 8, 2007; that violation was dismissed on August 28, 2007. Martin was cited for violating the Disorderly Conduct Ordinance on April 24, 2009; those charges were dismissed on September 9, 2009. With respect to these two incidents, the district court erred in finding that the plaintiffs’ Eighth

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Amendment challenge was barred by Heck. Where there is no “conviction or sentence” that may be undermined by a grant of relief to the plaintiffs, the Heck doctrine has no application. 512 U.S. at 486–87; see also Wallace v. Kato, 549 U.S. 384, 393 (2007).

Relying on Ingraham v. Wright, 430 U.S. 651, 664 (1977), the City argues that the Eighth Amendment, and the Cruel and Unusual Punishments Clause in particular, have no application where there has been no conviction. The City’s reliance on Ingraham is misplaced. As the Supreme Court observed in Ingraham, the Cruel and Unusual Punishments Clause not only limits the types of punishment that may be imposed and prohibits the imposition of punishment grossly disproportionate to the severity of the crime, but also “imposes substantive limits on what can be made criminal and punished as such.” Id. at 667. “This [latter] protection governs the criminal law process as a whole, not only the imposition of punishment postconviction.” Jones, 444 F.3d at 1128.

Ingraham concerned only whether “impositions outside the criminal process” — in that case, the paddling of schoolchildren — “constituted cruel and unusual punishment.” 430 U.S. at 667. Ingraham did not hold that a plaintiff challenging the state’s power to criminalize a particular status or conduct in the first instance, as the plaintiffs in this case do, must first be convicted. If conviction were a prerequisite for such a challenge, “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 [Cruel and Unusual Punishments Clause] cannot be subject to the criminal process.” Jones, 444 F.3d at 1129. For those rare Eighth Amendment

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challenges concerning the state’s very power to criminalize particular behavior or status, then, a plaintiff need demonstrate only the initiation of the criminal process against him, not a conviction.

3. Prospective Relief

The district court also erred in concluding that the plaintiffs’ requests for prospective injunctive relief were barred by Heck. The district court relied entirely on language in Wilkinson stating that “a state prisoner’s § 1983 action is barred (absent prior invalidation) . . . no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81–82. The district court concluded from this language in Wilkinson that a person convicted under an allegedly unconstitutional statute may never challenge the validity or application of that statute after the initial criminal proceeding is complete, even when the relief sought is prospective only and independent of the prior conviction. The logical extension of the district court’s interpretation is that an individual who does not successfully invalidate a first conviction under an unconstitutional statute will have no opportunity to challenge that statute prospectively so as to avoid arrest and conviction for violating that same statute in the future.

Neither Wilkinson nor any other case in the Heck line supports such a result. Rather, Wolff, Edwards, and Wilkinson compel the opposite conclusion.

Wolff held that although Preiser barred a § 1983 action seeking restoration of good-time credits absent a successful challenge in federal habeas proceedings, Preiser did not

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“preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid . . . regulations.” Wolff, 418 U.S. at 555. Although Wolff was decided before Heck, the Court subsequently made clear that Heck effected no change in the law in this regard, observing in Edwards that “[o]rdinarily, a prayer for . . . prospective [injunctive] relief will not ‘necessarily imply’ the invalidity of a previous loss of good-time credits, and so may properly be brought under § 1983.” Edwards, 520 U.S. at 648 (emphasis added). Importantly, the Court held in Edwards that although the plaintiff could not, consistently with Heck, seek a declaratory judgment stating that the procedures employed by state officials that deprived him of good-time credits were unconstitutional, he could seek an injunction barring such allegedly unconstitutional procedures in the future. Id. Finally, the Court noted in Wilkinson that the Heck line of cases “has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement,” Wilkinson, 544 U.S. at 81 (emphasis added), alluding to an existing confinement, not one yet to come.

The Heck doctrine, in other words, serves to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge. In context, it is clear that Wilkinson’s holding that the Heck doctrine bars a § 1983 action “no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration” applies to equitable relief concerning an existing confinement, not to suits seeking to preclude an unconstitutional confinement in the future, arising from incidents occurring after any prior conviction and stemming

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from a possible later prosecution and conviction. Id. at 81–82 (emphasis added). As Wilkinson held, “claims for future relief (which, if successful, will not necessarily imply the invalidity of confinement or shorten its duration)” are distant from the “core” of habeas corpus with which the Heck line of cases is concerned, and are not precluded by the Heck doctrine. Id. at 82.

In sum, we hold that the majority of the plaintiffs’ claims for retrospective relief are barred by Heck, but both Martin and Hawkes stated claims for damages to which Heck has no application. We further hold that Heck has no application to the plaintiffs’ requests for prospective injunctive relief.

C. The Eighth Amendment

At last, we turn to the merits — does the Cruel and Unusual Punishments Clause of the Eighth Amendment preclude the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter? We hold that it does, for essentially the same reasons articulated in the now-vacated Jones opinion.

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways.” Ingraham, 430 U.S. at 667. First, it limits the type of punishment the government may impose; second, it proscribes punishment “grossly disproportionate” to the severity of the crime; and third, it places substantive limits on what the government may criminalize. Id. It is the third limitation that is pertinent here.

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“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Robinson v. California, 370 U.S. 660, 667 (1962). Cases construing substantive limits as to what the government may criminalize are rare, however, and for good reason — the Cruel and Unusual Punishments Clause’s third limitation is “one to be applied sparingly.” Ingraham, 430 U.S. at 667.

Robinson, the seminal case in this branch of Eighth Amendment jurisprudence, held a California statute that “ma[de] the ‘status’ of narcotic addiction a criminal offense” invalid under the Cruel and Unusual Punishments Clause. 370 U.S. at 666. The California law at issue in Robinson was “not one which punishe[d] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration”; it punished addiction itself. Id. Recognizing narcotics addiction as an illness or disease — “apparently an illness which may be contracted innocently or involuntarily” — and observing that a “law which made a criminal offense of . . . a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment,” Robinson held the challenged statute a violation of the Eighth Amendment. Id. at 666–67.

As Jones observed, Robinson did not explain at length the principles underpinning its holding. See Jones, 444 F.3d at 1133. In Powell v. Texas, 392 U.S. 514 (1968), however, the Court elaborated on the principle first articulated in Robinson.

Powell concerned the constitutionality of a Texas law making public drunkenness a criminal offense. Justice Marshall, writing for a plurality of the Court, distinguished the Texas statute from the law at issue in Robinson on the

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ground that the Texas statute made criminal not alcoholism but conduct — appearing in public while intoxicated. “[A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant’s behavior in the privacy of his own home.” Id. at 532 (plurality opinion).

The Powell plurality opinion went on to interpret Robinson as precluding only the criminalization of “status,” not of “involuntary” conduct. “The 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’ . . . .” Id. at 533.

Four Justices dissented from the Court’s holding in Powell; Justice White concurred in the result alone. Notably, Justice White noted that many chronic alcoholics are also homeless, and that for those individuals, public drunkenness may be unavoidable as a practical matter. “For all practical purposes the public streets may be home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking. . . . For some of these alcoholics I would think 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

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a single act for which they may not be convicted under the Eighth Amendment — the act of getting drunk.” Id. at 551 (White, J., concurring in the judgment).

The four dissenting Justices adopted a position consistent with that taken by Justice White: that under Robinson, “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change,” and that the defendant, “once intoxicated, . . . could not prevent himself from appearing in public places.” Id. at 567 (Fortas, J., dissenting). Thus, five Justices gleaned from Robinson the principle that “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.” Jones, 444 F.3d at 1135; see also United States v. Roberston, 875 F.3d 1281, 1291 (9th Cir. 2017).

This principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. As Jones reasoned, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Jones, 444 F.3d at 1136. Moreover, any “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.” Id. As a result, just as the state may not criminalize the state of being “homeless in public places,” the state may not “criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” Id. at 1137.

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Our holding is a narrow one. Like the Jones panel, “we in no way dictate 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 1138. We hold only that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” Id. That is, 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.8

We are not alone in reaching this conclusion. As one court has observed, “resisting the need to eat, sleep or engage in other life-sustaining activities is impossible. Avoiding public places when engaging in this otherwise innocent conduct is also impossible. . . . As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively

8 Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes. Id. at 1136.

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punish them for something for which they may not be convicted under the [E]ighth [A]mendment — sleeping, eating and other innocent conduct.” Pottinger v. City of Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992); see also Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994) (holding that a “sleeping in public ordinance as applied against the homeless is unconstitutional”), rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995).9

Here, the two ordinances criminalize the simple act of sleeping outside on public property, whether bare or with a blanket or other basic bedding. The Disorderly Conduct Ordinance, on its face, criminalizes “[o]ccupying, lodging, or sleeping in any building, structure or place, whether public or private” without permission. Boise City Code § 6-01-05. Its scope is just as sweeping as the Los Angeles ordinance at issue in Jones, which mandated that “[n]o person shall sit, lie or sleep in or upon any street, sidewalk or other public way.” 444 F.3d at 1123.

The Camping Ordinance criminalizes using “any of the streets, sidewalks, parks or public places as a camping place

9 In Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000), the Eleventh Circuit upheld an anti-camping ordinance similar to Boise’s against an Eighth Amendment challenge. In Joel, however, the defendants presented unrefuted evidence that the homeless shelters in the City of Orlando had never reached capacity and that the plaintiffs had always enjoyed access to shelter space. Id. Those unrefuted facts were critical to the court’s holding. Id. As discussed below, the plaintiffs here have demonstrated a genuine issue of material fact concerning whether they have been denied access to shelter in the past or expect to be so denied in the future. Joel therefore does not provide persuasive guidance for this case.

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at any time.” Boise City Code § 9-10-02. The ordinance defines “camping” broadly:

The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at anytime between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping).

Id. It appears from the record that the Camping Ordinance is frequently enforced against homeless individuals with some elementary bedding, whether or not any of the other listed indicia of “camping” — the erection of temporary structures, the activity of cooking or making fire, or the storage of personal property — are present. For example, a Boise police officer testified that he cited plaintiff Pamela Hawkes under the Camping Ordinance for sleeping outside “wrapped in a blanket with her sandals off and next to her,” for sleeping in a public restroom “with blankets,” and for sleeping in a park “on a blanket, wrapped in blankets on the ground.” The Camping Ordinance therefore can be, and allegedly is, enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the

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elements. We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court as to the plaintiffs’ requests for retrospective relief, except as such claims relate to Hawkes’s July 2007 citation under the Camping Ordinance and Martin’s April 2009 citation under the Disorderly Conduct Ordinance. We REVERSE and REMAND with respect to the plaintiffs’ requests for prospective relief, both declaratory and injunctive, and to the plaintiffs’ claims for retrospective relief insofar as they relate to Hawkes’ July 2007 citation or Martin’s April 2009 citation.10

10 Costs shall be awarded to the plaintiffs.

Case: 15-35845, 09/04/2018, ID: 10998745, DktEntry: 66-1, Page 36 of 38

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MARTIN V. CITY OF BOISE

OWENS, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), bars the plaintiffs’ 42 U.S.C. § 1983 claims for damages that are based on convictions that have not been challenged on direct appeal or invalidated in state post-conviction relief. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1192 n.12 (9th Cir. 2015).

I also agree that Heck and its progeny have no application where there is no “conviction or sentence” that would be undermined by granting a plaintiff’s request for relief under § 1983. Heck, 512 U.S. at 486–87; see also Wallace v. Kato, 549 U.S. 384, 393 (2007). I therefore concur in the majority’s conclusion that Heck does not bar plaintiffs Robert Martin and Pamela Hawkes from seeking retrospective relief for the two instances in which they received citations, but not convictions. I also concur in the majority’s Eighth Amendment analysis as to those two claims for retrospective relief.

Where I part ways with the majority is in my understanding of Heck’s application to the plaintiffs’ claims for declaratory and injunctive relief. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court explained where the Heck doctrine stands today:

[A] state prisoner’s § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action

Case: 15-35845, 09/04/2018, ID: 10998745, DktEntry: 66-1, Page 37 of 38

MARTIN V. CITY OF BOISE

37

would necessarily demonstrate the invalidity of confinement or its duration.

Id. at 81–82. Here, the majority acknowledges this language in Wilkinson, but concludes that Heck’s bar on any type of relief that “would necessarily demonstrate the invalidity of confinement” does not preclude the prospective claims at issue. The majority reasons that the purpose of Heck is “to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge,” and so concludes that the plaintiffs’ prospective claims may proceed. I respectfully disagree.

A declaration that the city ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity of the plaintiffs’ prior convictions. Indeed, any time an individual challenges the constitutionality of a substantive criminal statute under which he has been convicted, he asks for a judgment that would necessarily demonstrate the invalidity of his conviction. And though neither the Supreme Court nor this court has squarely addressed Heck’s application to § 1983 claims challenging the constitutionality of a substantive criminal statute, I believe Edwards v. Balisok, 520 U.S. 641 (1997), makes clear that Heck prohibits such challenges. In Edwards, the Supreme Court explained that although our court had recognized that Heck barred § 1983 claims challenging the validity of a prisoner’s confinement “as a substantive matter,” it improperly distinguished as not Heck-barred all claims alleging only procedural violations. 520 U.S. at 645. In holding that Heck also barred those procedural claims that would necessarily imply the invalidity of a conviction, the Court did not question our conclusion that claims challenging a conviction “as a substantive matter” are barred by Heck.

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MARTIN V. CITY OF BOISE

Id.; see also Wilkinson, 544 U.S. at 82 (holding that the plaintiffs’ claims could proceed because the relief requested would only “render invalid the state procedures” and “a favorable judgment [would] not ‘necessarily imply the invalidity of [their] conviction[s] or sentence[s]’” (emphasis added) (quoting Heck, 512 U.S. at 487)).

Edwards thus leads me to conclude that an individual who was convicted under a criminal statute, but who did not challenge the constitutionality of the statute at the time of his conviction through direct appeal or post-conviction relief, cannot do so in the first instance by seeking declaratory or injunctive relief under § 1983. See Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1316 n.9 (11th Cir. 2005) (assuming that a §1983 claim challenging “the constitutionality of the ordinance under which [the petitioner was convicted]” would be Heck-barred). I therefore would hold that Heck bars the plaintiffs’ claims for declaratory and injunctive relief.

We are not the first court to struggle applying Heck to “real life examples,” nor will we be the last. See, e.g., Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Ginsburg, J., concurring) (alterations and internal quotation marks omitted) (explaining that her thoughts on Heck had changed since she joined the majority opinion in that case). If the slate were blank, I would agree that the majority’s holding as to prospective relief makes good sense. But because I read Heck and its progeny differently, I dissent as to that section of the majority’s opinion. I otherwise join the majority in full.

Case: 15-35845, 09/04/2018, ID: 10998745, DktEntry: 66-2, Page 1 of 5

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 Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762

920 F.3d 584 United States Court of Appeals, Ninth Circuit.
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.
No. 15-35845 |
Argued and Submitted July 13, 2017 Portland, Oregon |
Filed April 1, 2019
Synopsis Background: Homeless persons brought § 1983 action challenging city’s public camping ordinance on Eighth Amendment grounds. The United States District Court for the District of Idaho, Ronald E. Bush, United States Magistrate Judge, 834 F.Supp.2d 1103, entered summary judgment in defendants’ favor, and plaintiffs appealed. The Court of Appeals, 709 F.3d 890, reversed and remanded. On remand, defendants moved for summary judgment, and the District Court, Bush, United States Magistrate Judge, 993 F.Supp.2d 1237, granted motion in part and denied it in part. Appeal was taken.
Holdings: On denial of panel rehearing and rehearing en banc, the Court of Appeals, Berzon, Circuit Judge, held that:
homeless persons had standing to pursue their claims even after city adopted protocol not to enforce its public camping ordinance when available shelters were full;
plaintiffs were generally barred by Heck doctrine from commencing § 1983 action to obtain retrospective relief based on alleged unconstitutionality of their convictions;
Heck doctrine had no application to homeless persons whose citations under city’s public camping ordinance were dismissed before the state obtained a conviction;
Heck doctrine did not apply to prevent homeless persons
1

allegedly lacking alternative types of shelter from pursuing § 1983 action to obtain prospective relief preventing enforcement of city’s ordinance; and
Eighth Amendment prohibited the imposition of criminal penalties for sitting, sleeping, or lying outside on public property on homeless individuals who could not obtain shelter.
Reversed and remanded.
Opinion, 902 F.3d 1031, superseded.
Owens, Circuit Judge, filed opinion concurring in part and dissenting in part.
Berzon, Circuit Judge, filed opinion concurring in the denial of rehearing en banc.
M. Smith, Circuit Judge, filed opinion dissenting from the denial of rehearing en banc, in which Callahan, Bea, Ikuta, Bennett, and R. Nelson, Circuit Judges, joined.
Bennett, Circuit Judge, filed opinion dissenting from the denial of rehearing en banc, in which Bea, Ikuta, and R. Nelson, Circuit Judges, joined, and in which M. Smith, Circuit Judge, joined in part.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
Attorneys and Law Firms
*587 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.
Appeal from the United States District Court for the District of Idaho, Ronald E. Bush, Chief Magistrate Judge, Presiding, D.C. No. 1:09-cv-00540-REB
Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
Concurrence in Order by Judge Berzon;
Dissent to Order by Judge Milan D. Smith, Jr.;
Dissent to Order by Judge Bennett;
Partial Concurrence and Partial Dissent by Judge Owens
*588 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,
2

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 *589 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

Martin v. City of Boise, 920 F.3d 584 (2019)
19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
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/resources/?uploads/asset_library/H IA_Individual_Adults.pdf. The crisis continued to burgeon while ordinances *590 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 court2 that has considered the issue.

3

Martin v. City of Boise, 920 F.3d 584 (2019)
19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
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, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). It fails.
To understand Powell, we must begin with the Court’s decision in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (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, 82 S.Ct. 1417 (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, 82 S.Ct. 1417. The Court struck *591 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, 82 S.Ct. 1417.
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, 88 S.Ct. 2145. 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, 88 S.Ct. 2145. They held that because the Texas statute criminalized conduct rather than alcoholism, the law was constitutional. Powell, 392 U.S. at 532, 88 S.Ct. 2145.
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, 88 S.Ct. 2145 (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, 88 S.Ct. 2145.
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, 88 S.Ct. 2145 (White, J., concurring in the result). He wrote that it was
4

“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, 88 S.Ct. 2145.
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, 97 S.Ct. 990, 51 L.Ed.2d 260 (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, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (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 F. App’x 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”); *592 Joshua v. Adams, 231 F. App’x 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

Martin v. City of Boise, 920 F.3d 584 (2019)
19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
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, ––– U.S. ––––, 138 S.Ct. 1765, 1772, 201 L.Ed.2d 72 (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, 97 S.Ct. 990. 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, 109 S.Ct. 1917, 104 L.Ed.2d 526 (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, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977) (noting “the wisdom of allowing difficult issues to mature through *593 full consideration by the courts of appeals”).
5

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, 88 S.Ct. 2145). 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

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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 F. App’x 937 (4th Cir. 2018).8 *594 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
6

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

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require this labor-intensive task be done every single day. Yet in massive cities *595 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, *596 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
7

welfare of its people.” Knoxville Iron Co. v. Harbison, 183 U.S. 13, 20, 22 S.Ct. 1, 46 L.Ed. 55 (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 refrigerators, cupboards, televisions, and heaters, [that] vie with pedestrian traffic” and “human waste appearing on sidewalks and at local playgrounds.” *597 16
II. The panel’s fanciful merits-determination is accompanied by a no-less-inventive series of procedural rulings. The panel’s opinion also misconstrues two other areas of Supreme Court precedent concerning limits on the parties who can bring § 1983 challenges for violations of the Eighth Amendment.
A. The panel erred in holding that Robert Martin and Robert

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Anderson could obtain prospective relief under Heck v. Humphrey and its progeny. 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). As recognized by Judge Owens’s dissent, that conclusion cuts against binding precedent on the issue.
The Supreme Court has stated that Heck bars § 1983 claims if success on that claim would “necessarily demonstrate the invalidity of [the plaintiff’s] confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); see also Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (stating that Heck applies to claims for declaratory relief). Martin and Anderson’s prospective claims did just that. Those plaintiffs sought a declaration that the Ordinances under which they were convicted are unconstitutional and an injunction against their future enforcement on the grounds of unconstitutionality. It is clear that Heck bars these claims because Martin and Anderson necessarily seek to demonstrate the invalidity of their previous convictions.
The panel opinion relies on Edwards to argue that Heck does not bar plaintiffs’ requested relief, but Edwards cannot bear the weight the panel puts on it. In *598 Edwards, the plaintiff sought an injunction that would require prison officials to date-stamp witness statements at the time received. 520 U.S. at 643, 117 S.Ct. 1584. The Court concluded that requiring prison officials to date-stamp witness statements did not necessarily imply the invalidity of previous determinations that the prisoner was not entitled to good-time credits, and that Heck, therefore, did not bar prospective injunctive relief. Id. at 648, 117 S.Ct. 1584.
Here, in contrast, a declaration that the Ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity of the plaintiffs’ prior convictions. According to data from the U.S. Department of Housing and Urban Development, the number of homeless individuals in Boise exceeded the number of available shelter beds during each of the years that the plaintiffs were cited.17 Under the panel’s holding that “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property” “as long as there is no option of sleeping indoors,” that data necessarily demonstrates the invalidity of the plaintiffs’ prior convictions. Martin, 902 F.3d at 1048.
8

B.
The panel also erred in holding that Robert Martin and Pamela Hawkes, who were cited but not convicted of violating the Ordinances, had standing to sue under the Eighth Amendment. In so doing, the panel created a circuit split with the Fifth Circuit.
The panel relied on Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), to find that a plaintiff “need demonstrate only the initiation of the criminal process against him, not a conviction,” to bring an Eighth Amendment challenge. Martin, 902 F.3d at 1045. The panel cites Ingraham’s observation that the Cruel and Unusual Punishments Clause circumscribes the criminal process in that “it imposes substantive limits on what can be made criminal and punished as such.” Id. at 1046 (citing Ingraham, 430 U.S. at 667, 97 S.Ct. 1401). This reading of Ingraham, however, cherry picks isolated statements from the decision without considering them in their accurate context. The Ingraham Court plainly held that “Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.” 430 U.S. at 671 n.40, 97 S.Ct. 1401. And, “the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt.” Id. (emphasis added). As the Ingraham Court recognized, “[T]he decisions of [the Supreme] Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes.” Id. at 664, 97 S.Ct. 1401 (emphasis added). Clearly, then, Ingraham stands for the proposition that to challenge a criminal statute as violative of the Eighth Amendment, the individual must be convicted of that relevant crime.
The Fifth Circuit recognized this limitation on standing in Johnson v. City of Dallas, 61 F.3d 442 (5th Cir. 1995). There, the court confronted a similar action brought by homeless individuals challenging a sleeping in public ordinance. *599 Johnson, 61 F.3d at 443. The court held that the plaintiffs did not have standing to raise an Eighth Amendment challenge to the ordinance because although “numerous tickets ha[d] been issued ... [there was] no indication that any Appellees ha[d] been convicted” of violating the sleeping in public ordinance. Id. at 445. The Fifth Circuit explained that Ingraham clearly required a plaintiff be convicted under a criminal statute before challenging that statute’s validity. Id. at 444–45 (citing Robinson, 370 U.S. at 663, 82 S.Ct. 1417; Ingraham, 430

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
U.S. at 667, 97 S.Ct. 1401).
By permitting Martin and Hawkes to maintain their Eighth Amendment challenge, the panel’s decision created a circuit split with the Fifth Circuit and took our circuit far afield from “[t]he primary purpose of (the Cruel and Unusual Punishments Clause) ... [which is] the method or kind of punishment imposed for the violation of criminal statutes.” Ingraham, 430 U.S. at 667, 97 S.Ct. 1401 (quoting Powell, 392 U.S. at 531–32, 88 S.Ct. 2145).
III.

I recognize that we are, of course, bound by Supreme Court precedent holding that the Eighth Amendment encompasses a limitation “on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) (citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962)). However, the Ingraham Court specifically “recognized [this] limitation as one to be applied sparingly.” Id. As Judge M. Smith’s dissent ably points out, the panel ignored Ingraham’s clear direction that Eighth Amendment scrutiny attaches only after a criminal conviction. Because the panel’s decision, which allows pre-conviction Eighth Amendment challenges, is wholly inconsistent with the text and tradition of the Eighth Amendment, I respectfully dissent from our decision not to rehear this case en banc.

None of us is blind to the undeniable suffering that the homeless endure, and I understand the panel’s impulse to help such a vulnerable population. But the Eighth Amendment is not a vehicle through which to critique public policy choices or to hamstring a local government’s enforcement of its criminal code. The panel’s decision, which effectively strikes down the anti-camping and anti-sleeping Ordinances of Boise and that of countless, if not all, cities within our jurisdiction, has no legitimate basis in current law.
I am deeply concerned about the consequences of our panel’s unfortunate opinion, and I regret that we did not vote to reconsider this case en banc. I respectfully dissent.
BENNETT, Circuit Judge, with whom BEA, IKUTA, and R. NELSON, Circuit Judges, join, and with whom M. SMITH, Circuit Judge, joins as to Part II, dissenting from the denial of rehearing en banc:
I fully join Judge M. Smith’s opinion dissenting from the denial of rehearing en banc. I write separately to explain that except in extraordinary circumstances not present in this case, and based on its text, tradition, and original public meaning, the Cruel and Unusual Punishments Clause of the Eighth Amendment does not impose substantive limits on what conduct a state may criminalize.
9

I.
The text of the Cruel and Unusual Punishments Clause is virtually identical to Section 10 of the English Declaration of *600 Rights of 1689,1 and there is no question that the drafters of the Eighth Amendment were influenced by the prevailing interpretation of Section 10. See Solem v. Helm, 463 U.S. 277, 286, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (observing that one of the themes of the founding era “was that Americans had all the rights of English subjects” and the Framers’ “use of the language of the English Bill of Rights is convincing proof that they intended to provide at least the same protection”); Timbs v. Indiana, 586 U.S. ––––, 139 S.Ct. 682, ––– L.Ed.2d –––– (2019) (Thomas, J., concurring) (“[T]he text of the Eighth Amendment was ‘based directly on ... the Virginia Declaration of Rights,’ which ‘adopted verbatim the language of the English Bill of Rights.’ ” (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989))). Thus, “not only is the original meaning of the 1689 Declaration of Rights relevant, but also the circumstances of its enactment, insofar as they display the particular ‘rights of English subjects’ it was designed to vindicate.” Harmelin v. Michigan, 501 U.S. 957, 967, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Scalia, J., concurring).
Justice Scalia’s concurrence in Harmelin provides a thorough and well-researched discussion of the original

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public meaning of the Cruel and Unusual Punishments Clause, including a detailed overview of the history of Section 10 of the English Declaration of Rights. See id. at 966–85, 111 S.Ct. 2680 (Scalia, J., concurring). Rather than reciting Justice Scalia’s Harmelin discussion in its entirety, I provide only a broad description of its historical analysis. Although the issue Justice Scalia confronted in Harmelin was whether the Framers intended to graft a proportionality requirement on the Eighth Amendment, see id. at 976, 111 S.Ct. 2680, his opinion’s historical exposition is instructive to the issue of what the Eighth Amendment meant when it was written.
The English Declaration of Rights’s prohibition on “cruell and unusuall Punishments” is attributed to the arbitrary punishments imposed by the King’s Bench following the Monmouth Rebellion in the late 17th century. Id. at 967, 111 S.Ct. 2680 (Scalia, J., concurring). “Historians have viewed the English provision as a reaction either to the ‘Bloody Assize,’ the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion of the Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year.” Ingraham, 430 U.S. at 664, 97 S.Ct. 1401 (footnote omitted).
Presiding over a special commission in the wake of the Monmouth Rebellion, Chief Justice Jeffreys imposed “vicious punishments for treason,” including “drawing and quartering, burning of women felons, beheading, [and] disemboweling.” Harmelin, 501 U.S. at 968, 111 S.Ct. 2680. In the view of some historians, “the story of The Bloody Assizes ... helped to place constitutional limitations on the crime of treason and to produce a bar against cruel and unusual Punishments.” Furman v. Georgia, 408 U.S. 238, 254, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring).
More recent scholarship suggests that Section 10 of the Declaration of Rights was motivated more by Jeffreys’s treatment of Titus Oates, a Protestant cleric and convicted perjurer. In addition to the pillory, the scourge, and life imprisonment, Jeffreys sentenced Oates to be “stript of [his] Canonical Habits.” *601 Harmelin, 501 U.S. at 970, 111 S.Ct. 2680 (Scalia, J., concurring) (quoting Second Trial of Titus Oates, 10 How. St. Tr. 1227, 1316 (K.B. 1685)). Years after the sentence was carried out, and months after the passage of the Declaration of Rights, the House of Commons passed a bill to annul Oates’s sentence. Though the House of Lords never agreed, the Commons issued a report asserting that Oates’s sentence was the sort of “cruel and unusual Punishment” that Parliament complained of in the Declaration of Rights.
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Harmelin, 501 U.S. at 972, 111 S.Ct. 2680 (citing 10 Journal of the House of Commons 247 (Aug. 2, 1689)). In the view of the Commons and the dissenting Lords, Oates’s punishment was “ ‘out of the Judges’ Power,’ ‘contrary to Law and ancient practice,’ without ‘Precedents’ or ‘express Law to warrant,’ ‘unusual,’ ‘illegal,’ or imposed by ‘Pretence to a discretionary Power.’ ” Id. at 973, 111 S.Ct. 2680 (quoting 1 Journals of the House of Lords 367 (May 31, 1689); 10 Journal of the House of Commons 247 (Aug. 2, 1689)).
Thus, Justice Scalia concluded that the prohibition on “cruell and unusuall punishments” as used in the English Declaration, “was primarily a requirement that judges pronouncing sentence remain within the bounds of common-law tradition.” Harmelin, 501 U.S. at 974, 111 S.Ct. 2680 (Scalia, J., concurring) (citing Ingraham, 430 U.S. at 665, 97 S.Ct. 1401; 1 J. Chitty, Criminal Law 710–12 (5th Am. ed. 1847); Anthony F. Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Calif. L. Rev. 839, 859 (1969)).
But Justice Scalia was careful not to impute the English meaning of “cruell and unusuall” directly to the Framers of our Bill of Rights: “the ultimate question is not what ‘cruell and unusuall punishments’ meant in the Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment.” Id. at 975, 111 S.Ct. 2680. “Wrenched out of its common-law context, and applied to the actions of a legislature ... the Clause disables the Legislature from authorizing particular forms or ‘modes’ of punishment—specifically, cruel methods of punishment that are not regularly or customarily employed.” Id. at 976, 111 S.Ct. 2680.
As support for his conclusion that the Framers of the Bill of Rights intended for the Eighth Amendment to reach only certain punishment methods, Justice Scalia looked to “the state ratifying conventions that prompted the Bill of Rights.” Id. at 979, 111 S.Ct. 2680. Patrick Henry, speaking at the Virginia Ratifying convention, “decried the absence of a bill of rights,” arguing that “Congress will loose the restriction of not ... inflicting cruel and unusual punishments. ... What has distinguished our ancestors?—They would not admit of tortures, or cruel and barbarous punishment.” Id. at 980, 111 S.Ct. 2680 (quoting 3 J. Elliot, Debates on the Federal Constitution 447 (2d ed. 1854)). The Massachusetts Convention likewise heard the objection that, in the absence of a ban on cruel and unusual punishments, “racks and gibbets may be amongst the most mild instruments of [Congress’s] discipline.” Id. at 979, 111 S.Ct. 2680

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(internal quotation marks omitted) (quoting 2 J. Debates on the Federal Constitution, at 111). These historical sources “confirm[ ] the view that the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment.” Id. (internal quotation marks omitted) (quoting Granucci, 57 Calif. L. Rev. at 842) (emphasis in Harmelin).
In addition, early state court decisions “interpreting state constitutional provisions with identical or more expansive wording (i.e., ‘cruel or unusual’) concluded that these provisions ... proscribe[d] ... only certain modes of punishment.” Id. at 983, 111 S.Ct. 2680; see also *602 id. at 982, 111 S.Ct. 2680 (“Many other Americans apparently agreed that the Clause only outlawed certain modes of punishment.”).
In short, when the Framers drafted and the several states ratified the Eighth Amendment, the original public meaning of the Cruel and Unusual Punishments Clause was “to proscribe ... methods of punishment.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). There is simply no indication in the history of the Eighth Amendment that the Cruel and Unusual Punishments Clause was intended to reach the substantive authority of Congress to criminalize acts or status, and certainly not before conviction. Incorporation, of course, extended the reach of the Clause to the States, but worked no change in its meaning.
II.
The panel here held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.” Martin v. City of Boise, 902 F.3d 1031, 1048 (9th Cir. 2018). In so holding, the panel allows challenges asserting this prohibition to be brought in advance of any conviction. That holding, however, has nothing to do with the punishment that the City of Boise imposes for those offenses, and thus nothing to do with the text and tradition of the Eighth Amendment.
The panel pays only the barest attention to the Supreme Court’s admonition that the application of the Eighth Amendment to substantive criminal law be “sparing[ ],”
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Martin, 902 F.3d at 1047 (quoting Ingraham, 430 U.S. at 667, 97 S.Ct. 1401), and its holding here is dramatic in scope and completely unfaithful to the proper interpretation of the Cruel and Unusual Punishments Clause.
“The primary purpose of (the Cruel and Unusual Punishments Clause) has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes.” Ingraham, 430 U.S. at 667, 97 S.Ct. 1401 (internal quotation marks omitted) (quoting Powell v. Texas, 392 U.S. 514, 531–32, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968)). It should, therefore, be the “rare case” where a court invokes the Eighth Amendment’s criminalization component. Jones v. City of Los Angeles, 444 F.3d 1118, 1146 (9th Cir. 2006) (Rymer, J., dissenting), vacated, 505 F.3d 1006 (9th Cir. 2007).2 And permitting a pre-conviction challenge to a local ordinance, as the panel does here, is flatly inconsistent with the Cruel and Unusual Punishments Clause’s core constitutional function: regulating the methods of punishment that may be inflicted upon one convicted of an offense. Harmelin, 501 U.S. at 977, 979, 111 S.Ct. 2680 (Scalia, J., concurring). As Judge Rymer, dissenting in Jones, observed, “the Eighth Amendment’s ‘protections do not attach until after conviction and sentence.’ ”3 444 F.3d at 1147 (Rymer, J., dissenting) *603 (internal alterations omitted) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).4
The panel’s holding thus permits plaintiffs who have never been convicted of any offense to avail themselves of a constitutional protection that, historically, has been concerned with prohibition of “only certain modes of punishment.” Harmelin, 501 U.S. at 983, 111 S.Ct. 2680; see also United States v. Quinn, 123 F.3d 1415, 1425 (11th Cir. 1997) (citing Harmelin for the proposition that a “plurality of the Supreme Court ... has rejected the notion that the Eighth Amendment’s protection from cruel and unusual punishment extends to the type of offense for which a sentence is imposed”).
Extending the Cruel and Unusual Punishments Clause to encompass pre-conviction challenges to substantive criminal law stretches the Eighth Amendment past its breaking point. I doubt that the drafters of our Bill of Rights, the legislators of the states that ratified it, or the public at the time would ever have imagined that a ban on “cruel and unusual punishments” would permit a plaintiff to challenge a substantive criminal statute or ordinance that he or she had not even been convicted of violating.

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We should have taken this case en banc to confirm that an Eighth Amendment challenge does not lie in the absence of a punishment following conviction for an offense.
* * *
At common law and at the founding, a prohibition on “cruel and unusual punishments” was simply that: a limit on the types of punishments that government could inflict following a criminal conviction. The panel strayed far from the text and history of the Cruel and Unusual Punishments Clause in imposing the substantive limits it has on the City of Boise, particularly as to plaintiffs who have not yet even been convicted of an offense. We should have reheard this case en banc, and I respectfully dissent.
Opinion
BERZON, Circuit Judge:
“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”
— Anatole France, The Red Lily We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.
The plaintiffs-appellants are six current or former residents of the City of Boise (“the City”), who are homeless or have recently been homeless. Each plaintiff alleges that, between 2007 and 2009, he or she was cited by Boise police for violating one or both of two city ordinances. The first, Boise City Code § 9-10-02 (the “Camping Ordinance”), makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” The Camping Ordinance defines “camping” as “the use of public property as a temporary or permanent *604 place of dwelling, lodging, or residence.” Id. The second, Boise City Code § 6-01-05 (the “Disorderly Conduct Ordinance”), bans “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private ... without the permission of the owner or person entitled to
12

possession or in control thereof.”
All plaintiffs seek retrospective relief for their previous citations under the ordinances. Two of the plaintiffs, Robert Anderson and Robert Martin, allege that they expect to be cited under the ordinances again in the future and seek declaratory and injunctive relief against future prosecution.
In Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), a panel of this court concluded that “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]” for the homeless, Los Angeles could not enforce a similar ordinance against homeless individuals “for involuntarily sitting, lying, and sleeping in public.” Jones is not binding on us, as there was an underlying settlement between the parties and our opinion was vacated as a result. We agree with Jones’s reasoning and central conclusion, however, and so 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. Two of the plaintiffs, we further hold, may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right.
I. Background
The district court granted summary judgment to the City on all claims. We therefore review the record in the light most favorable to the plaintiffs. Tolan v. Cotton, 572 U.S. 650, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014).
Boise has a significant and increasing homeless population. According to the Point-in-Time Count (“PIT Count”) conducted by the Idaho Housing and Finance Association, there were 753 homeless individuals in Ada County — the county of which Boise is the seat — in January 2014, 46 of whom were “unsheltered,” or living in places unsuited to human habitation such as parks or sidewalks. In 2016, the last year for which data is available, there were 867 homeless individuals counted in Ada County, 125 of whom were unsheltered.1 The PIT Count likely underestimates the number of homeless individuals in Ada County. It is “widely recognized that a

Martin v. City of Boise, 920 F.3d 584 (2019)
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one-night point in time count will undercount the homeless population,” as many homeless individuals may have access to temporary housing on a given night, and as weather conditions may affect the number of available volunteers and the number of homeless people staying at shelters or accessing services on the night of the count.
*605 There are currently three homeless shelters in the City of Boise offering emergency shelter services, all run by private, nonprofit organizations. As far as the record reveals, these three shelters are the only shelters in Ada County.
One shelter — “Sanctuary” — is operated by Interfaith Sanctuary Housing Services, Inc. The shelter is open to men, women, and children of all faiths, and does not impose any religious requirements on its residents. Sanctuary has 96 beds reserved for individual men and women, with several additional beds reserved for families. The shelter uses floor mats when it reaches capacity with beds.
Because of its limited capacity, Sanctuary frequently has to turn away homeless people seeking shelter. In 2010, Sanctuary reached full capacity in the men’s area “at least half of every month,” and the women’s area reached capacity “almost every night of the week.” In 2014, the shelter reported that it was full for men, women, or both on 38% of nights. Sanctuary provides beds first to people who spent the previous night at Sanctuary. At 9:00 pm each night, it allots any remaining beds to those who added their names to the shelter’s waiting list.
The other two shelters in Boise are both operated by the Boise Rescue Mission (“BRM”), a Christian nonprofit organization. One of those shelters, the River of Life Rescue Mission (“River of Life”), is open exclusively to men; the other, the City Light Home for Women and Children (“City Light”), shelters women and children only.
BRM’s facilities provide two primary “programs” for the homeless, the Emergency Services Program and the New Life Discipleship Program.2 The Emergency Services Program provides temporary shelter, food, and clothing to anyone in need. Christian religious services are offered to those seeking shelter through the Emergency Services Program. The shelters display messages and iconography on the walls, and the intake form for emergency shelter guests includes a religious message.3
Homeless individuals may check in to either BRM facility
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between 4:00 and 5:30 pm. Those who arrive at BRM facilities between 5:30 and 8:00 pm may be denied shelter, depending on the reason for their late arrival; generally, anyone arriving after 8:00 pm is denied shelter.
Except in winter, male guests in the Emergency Services Program may stay at River of Life for up to 17 consecutive nights; women and children in the Emergency Services Program may stay at City Light for up to 30 consecutive nights. After the time limit is reached, homeless individuals who do not join the Discipleship Program may not return to a BRM shelter for at least 30 days.4 Participants in the Emergency Services Program must return to the shelter every night during the applicable 17-day or 30-day period; if a resident fails to check in to a BRM shelter each night, that resident is prohibited from staying overnight at that shelter for 30 *606 days. BRM’s rules on the length of a person’s stay in the Emergency Services Program are suspended during the winter.
The Discipleship Program is an “intensive, Christ-based residential recovery program” of which “[r]eligious study is the very essence.” The record does not indicate any limit to how long a member of the Discipleship Program may stay at a BRM shelter.
The River of Life shelter contains 148 beds for emergency use, along with 40 floor mats for overflow; 78 additional beds serve those in non-emergency shelter programs such as the Discipleship Program. The City Light shelter has 110 beds for emergency services, as well as 40 floor mats to handle overflow and 38 beds for women in non-emergency shelter programs. All told, Boise’s three homeless shelters contain 354 beds and 92 overflow mats for homeless individuals.
A. The Plaintiffs Plaintiffs Robert Martin, Robert Anderson, Lawrence Lee Smith, Basil E. Humphrey, Pamela S. Hawkes, and Janet F. Bell are all homeless individuals who have lived in or around Boise since at least 2007. Between 2007 and 2009, each plaintiff was convicted at least once of violating the Camping Ordinance, the Disorderly Conduct Ordinance, or both. With one exception, all plaintiffs were sentenced to time served for all convictions; on two occasions, Hawkes was sentenced to one additional day in jail. During the same period, Hawkes was cited, but not

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
convicted, under the Camping Ordinance, and Martin was cited, but not convicted, under the Disorderly Conduct Ordinance.
Plaintiff Robert Anderson currently lives in Boise; he is homeless and has often relied on Boise’s shelters for housing. In the summer of 2007, Anderson stayed at River of Life as part of the Emergency Services Program until he reached the shelter’s 17-day limit for male guests. Anderson testified that during his 2007 stay at River of Life, he was required to attend chapel services before he was permitted to eat dinner. At the conclusion of his 17-day stay, Anderson declined to enter the Discipleship Program because of his religious beliefs. As Anderson was barred by the shelter’s policies from returning to River of Life for 30 days, he slept outside for the next several weeks. On September 1, 2007, Anderson was cited under the Camping Ordinance. He pled guilty to violating the Camping Ordinance and paid a $25 fine; he did not appeal his conviction.
Plaintiff Robert Martin is a former resident of Boise who currently lives in Post Falls, Idaho. Martin returns frequently to Boise to visit his minor son. In March of 2009, Martin was cited under the Camping Ordinance for sleeping outside; he was cited again in 2012 under the same ordinance.
B. Procedural History The plaintiffs filed this action in the United States District Court for the District of Idaho in October of 2009. All plaintiffs alleged that their previous citations under the Camping Ordinance and the Disorderly Conduct Ordinance violated the Cruel and Unusual Punishments Clause of the Eighth Amendment, and sought damages for those alleged violations under 42 U.S.C. § 1983. Cf. Jones, 444 F.3d at 1138. Anderson and Martin also sought prospective declaratory and injunctive relief precluding future enforcement of the ordinances under the same statute and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202.
After this litigation began, the Boise Police Department promulgated a new *607 “Special Order,” effective as of January 1, 2010, that prohibited enforcement of either the Camping Ordinance or the Disorderly Conduct Ordinance against any homeless person on public property on any night when no shelter had “an available overnight space.”
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City police implemented the Special Order through a two-step procedure known as the “Shelter Protocol.”
Under the Shelter Protocol, if any shelter in Boise reaches capacity on a given night, that shelter will so notify the police at roughly 11:00 pm. Each shelter has discretion to determine whether it is full, and Boise police have no other mechanism or criteria for gauging whether a shelter is full. Since the Shelter Protocol was adopted, Sanctuary has reported that it was full on almost 40% of nights. Although BRM agreed to the Shelter Protocol, its internal policy is never to turn any person away because of a lack of space, and neither BRM shelter has ever reported that it was full.
If all shelters are full on the same night, police are to refrain from enforcing either ordinance. Presumably because the BRM shelters have not reported full, Boise police continue to issue citations regularly under both ordinances.
In July 2011, the district court granted summary judgment to the City. It held that the plaintiffs’ claims for retrospective relief were barred under the Rooker-Feldman doctrine and that their claims for prospective relief were mooted by the Special Order and the Shelter Protocol. Bell v. City of Boise, 834 F.Supp.2d 1103 (D. Idaho 2011). On appeal, we reversed and remanded. Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013). We held that the district court erred in dismissing the plaintiffs’ claims under the Rooker-Feldman doctrine. Id. at 897. In so holding, we expressly declined to consider whether the favorable-termination requirement from Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), applied to the plaintiffs’ claims for retrospective relief. Instead, we left the issue for the district court on remand. Bell, 709 F.3d at 897 n.11.
Bell further held that the plaintiffs’ claims for prospective relief were not moot. The City had not met its “heavy burden” of demonstrating that the challenged conduct — enforcement of the two ordinances against homeless individuals with no access to shelter — “could not reasonably be expected to recur.” Id. at 898, 901 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). We emphasized that the Special Order was a statement of administrative policy and so could be amended or reversed at any time by the Boise Chief of Police. Id. at 899–900.

Martin v. City of Boise, 920 F.3d 584 (2019)
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Finally, Bell rejected the City’s argument that the plaintiffs lacked standing to seek prospective relief because they were no longer homeless. Id. at 901 & n.12. We noted that, on summary judgment, the plaintiffs “need not establish that they in fact have standing, but only that there is a genuine issue of material fact as to the standing elements.” Id. (citation omitted).
On remand, the district court again granted summary judgment to the City on the plaintiffs’ § 1983 claims. The court observed that Heck requires a § 1983 plaintiff seeking damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” to demonstrate that “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal ... or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486–87, 114 S.Ct. 2364. According to the district court, “a judgment finding the Ordinances unconstitutional *608 ... necessarily would imply the invalidity of Plaintiffs’ [previous] convictions under those ordinances,” and the plaintiffs therefore were required to demonstrate that their convictions or sentences had already been invalidated. As none of the plaintiffs had raised an Eighth Amendment challenge as a defense to criminal prosecution, nor had any plaintiff successfully appealed their conviction, the district court held that all of the plaintiffs’ claims for retrospective relief were barred by Heck. The district court also rejected as barred by Heck the plaintiffs’ claim for prospective injunctive relief under § 1983, reasoning that “a ruling in favor of Plaintiffs on even a prospective § 1983 claim would demonstrate the invalidity of any confinement stemming from those convictions.”
Finally, the district court determined that, although Heck did not bar relief under the Declaratory Judgment Act, Martin and Anderson now lack standing to pursue such relief. The linchpin of this holding was that the Camping Ordinance and the Disorderly Conduct Ordinance were both amended in 2014 to codify the Special Order’s mandate that “[l]aw enforcement officers shall not enforce [the ordinances] when the individual is on public property and there is no available overnight shelter.” Boise City Code §§ 6-01-05, 9-10-02. Because the ordinances, as amended, permitted camping or sleeping in a public place when no shelter space was available, the court held that there was no “credible threat” of future prosecution. “If the Ordinances are not to be enforced when the shelters are full, those Ordinances do not inflict a constitutional injury upon these particular plaintiffs ....” The court emphasized that the record “suggests there is no
15

known citation of a homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity” and that “there has not been a single night when all three shelters in Boise called in to report they were simultaneously full for men, women or families.”
This appeal followed.
II. Discussion
A. Standing We first consider whether any of the plaintiffs has standing to pursue prospective relief.5 We conclude that there are sufficient opposing facts in the record to create a genuine issue of material fact as to whether Martin and Anderson face a credible threat of prosecution under one or both ordinances in the future at a time when they are unable to stay at any Boise homeless shelter.6
“To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (citation omitted). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury *609 is not too speculative for Article III purposes — that the injury is certainly impending.” Id. (citation omitted). A plaintiff need not, however, await an arrest or prosecution to have standing to challenge the constitutionality of a criminal statute. “When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citation and internal quotation marks omitted). To defeat a motion for summary judgment premised on an alleged lack of standing, plaintiffs “ need not establish that they in fact have standing, but only that there is a

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genuine question of material fact as to the standing elements.” Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002).
In dismissing Martin and Anderson’s claims for declaratory relief for lack of standing, the district court emphasized that Boise’s ordinances, as amended in 2014, preclude the City from issuing a citation when there is no available space at a shelter, and there is consequently no risk that either Martin or Anderson will be cited under such circumstances in the future. Viewing the record in the light most favorable to the plaintiffs, we cannot agree.
Although the 2014 amendments preclude the City from enforcing the ordinances when there is no room available at any shelter, the record demonstrates that the City is wholly reliant on the shelters to self-report when they are full. It is undisputed that Sanctuary is full as to men on a substantial percentage of nights, perhaps as high as 50%. The City nevertheless emphasizes that since the adoption of the Shelter Protocol in 2010, the BRM facilities, River of Life and City Light, have never reported that they are full, and BRM states that it will never turn people away due to lack space.
The plaintiffs have pointed to substantial evidence in the record, however, indicating that whether or not the BRM facilities are ever full or turn homeless individuals away for lack of space, they do refuse to shelter homeless people who exhaust the number of days allotted by the facilities. Specifically, the plaintiffs allege, and the City does not dispute, that it is BRM’s policy to limit men to 17 consecutive days in the Emergency Services Program, after which they cannot return to River of Life for 30 days; City Light has a similar 30-day limit for women and children. Anderson testified that BRM has enforced this policy against him in the past, forcing him to sleep outdoors.
The plaintiffs have adduced further evidence indicating that River of Life permits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part of the New Life Discipleship program, which has a mandatory religious focus. For example, there is evidence that participants in the New Life Program are not allowed to spend days at Corpus Christi, a local Catholic program, “because it’s ... a different sect.” There are also facts in dispute concerning whether the Emergency Services Program itself has a religious component. Although the City argues strenuously that the Emergency Services Program is secular, Anderson testified to the contrary; he
16

stated that he was once required to attend chapel before being permitted to eat dinner at the River of Life shelter. Both Martin and Anderson have objected to the overall religious atmosphere *610 of the River of Life shelter, including the Christian messaging on the shelter’s intake form and the Christian iconography on the shelter walls. A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment. Inouye v. Kemna, 504 F.3d 705, 712–13 (9th Cir. 2007). Yet at the conclusion of a 17-day stay at River of Life, or a 30-day stay at City Light, an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM programming that is antithetical to his or her religious beliefs.
The 17-day and 30-day limits are not the only BRM policies which functionally limit access to BRM facilities even when space is nominally available. River of Life also turns individuals away if they voluntarily leave the shelter before the 17-day limit and then attempt to return within 30 days. An individual who voluntarily leaves a BRM facility for any reason — perhaps because temporary shelter is available at Sanctuary, or with friends or family, or in a hotel — cannot immediately return to the shelter if circumstances change. Moreover, BRM’s facilities may deny shelter to any individual who arrives after 5:30 pm, and generally will deny shelter to anyone arriving after 8:00 pm. Sanctuary, however, does not assign beds to persons on its waiting list until 9:00 pm. Thus, by the time a homeless individual on the Sanctuary waiting list discovers that the shelter has no room available, it may be too late to seek shelter at either BRM facility.
So, even if we credit the City’s evidence that BRM’s facilities have never been “full,” and that the City has never cited any person under the ordinances who could not obtain shelter “due to a lack of shelter capacity,” there remains a genuine issue of material fact as to whether homeless individuals in Boise run a credible risk of being issued a citation on a night when Sanctuary is full and they have been denied entry to a BRM facility for reasons other than shelter capacity. If so, then as a practical matter, no shelter is available. We note that despite the Shelter Protocol and the amendments to both ordinances, the City continues regularly to issue citations for violating both ordinances; during the first three months of 2015, the Boise Police Department issued over 175 such citations.
The City argues that Martin faces little risk of prosecution

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
under either ordinance because he has not lived in Boise since 2013. Martin states, however, that he is still homeless and still visits Boise several times a year to visit his minor son, and that he has continued to seek shelter at Sanctuary and River of Life. Although Martin may no longer spend enough time in Boise to risk running afoul of BRM’s 17-day limit, he testified that he has unsuccessfully sought shelter at River of Life after being placed on Sanctuary’s waiting list, only to discover later in the evening that Sanctuary had no available beds. Should Martin return to Boise to visit his son, there is a reasonable possibility that he might again seek shelter at Sanctuary, only to discover (after BRM has closed for the night) that Sanctuary has no space for him. Anderson, for his part, continues to live in Boise and states that he remains homeless.
We conclude that both Martin and Anderson have demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to Boise’s homeless shelters; both plaintiffs therefore have standing to seek prospective relief.
*611 B. Heck v. Humphrey We turn next to the impact of Heck v. Humphrey and its progeny on this case. With regard to retrospective relief, the plaintiffs maintain that Heck should not bar their claims because, with one exception, all of the plaintiffs were sentenced to time served.7 It would therefore have been impossible for the plaintiffs to obtain federal habeas relief, as any petition for a writ of habeas corpus must be filed while the petitioner is “in custody pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a); Spencer v. Kemna, 523 U.S. 1, 7, 17–18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). With regard to prospective relief, the plaintiffs emphasize that they seek only equitable protection against future enforcement of an allegedly unconstitutional statute, and not to invalidate any prior conviction under the same statute. We hold that although the Heck line of cases precludes most — but not all — of the plaintiffs’ requests for retrospective relief, that doctrine has no application to the plaintiffs’ request for an injunction enjoining prospective enforcement of the ordinances.
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1. The Heck Doctrine A long line of Supreme Court case law, beginning with Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), holds that a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his or her confinement, but must instead seek federal habeas corpus relief or analogous state relief. Id. at 477, 500. Preiser considered whether a prison inmate could bring a § 1983 action seeking an injunction to remedy an unconstitutional deprivation of good-time conduct credits. Observing that habeas corpus is the traditional instrument to obtain release from unlawful confinement, Preiser recognized an implicit exception from § 1983’s broad scope for actions that lie “within the core of habeas corpus” — specifically, challenges to the “fact or duration” of confinement. Id. at 487, 500, 93 S.Ct. 1827. The Supreme Court subsequently held, however, that although Preiser barred inmates from obtaining an injunction to restore good-time credits via a § 1983 action, Preiser did not “preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.” Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (emphasis added).
Heck addressed a § 1983 action brought by an inmate seeking compensatory and punitive damages. The inmate alleged that state and county officials had engaged in unlawful investigations and knowing destruction of exculpatory evidence. Heck, 512 U.S. at 479, 114 S.Ct. 2364. The Court in Heck analogized a § 1983 action of this type, which called into question the validity of an underlying conviction, to a cause of action for malicious prosecution, id. at 483–84, 114 S.Ct. 2364, and went on to hold that, as with a malicious prosecution claim, a plaintiff in such an action must demonstrate a favorable termination of the criminal proceedings before seeking tort relief, id. at 486–87, 114 S.Ct. 2364. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared *612 invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id.
Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) extended Heck’s holding to claims for declaratory relief. Id. at 648, 117 S.Ct. 1584. The plaintiff

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762

in Edwards alleged that he had been deprived of earned good-time credits without due process of law, because the decisionmaker in disciplinary proceedings had concealed exculpatory evidence. Because the plaintiff’s claim for declaratory relief was “based on allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment imposed,” Edwards held, it was “not cognizable under § 1983.” Id. Edwards went on to hold, however, that a requested injunction requiring prison officials to date-stamp witness statements was not Heck-barred, reasoning that a “prayer for such prospective relief will not ‘necessarily imply’ the invalidity of a previous loss of good-time credits, and so may properly be brought under § 1983.” Id. (emphasis added).

Most recently, Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), stated that Heck bars § 1983 suits even when the relief sought is prospective injunctive or declaratory relief, “if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81–82, 125 S.Ct. 1242 (emphasis omitted). But Wilkinson held that the plaintiffs in that case could seek a prospective injunction compelling the state to comply with constitutional requirements in parole proceedings in the future. The Court observed that the prisoners’ claims for future relief, “if successful, will not necessarily imply the invalidity of confinement or shorten its duration.” Id. at 82, 125 S.Ct. 1242.

The Supreme Court did not, in these cases or any other,

conclusively

determine

whether

Heck’s

favorable-termination requirement applies to convicts

who have no practical opportunity to challenge their

conviction or sentence via a petition for habeas corpus.

See Muhammad v. Close, 540 U.S. 749, 752 & n.2, 124

S.Ct. 1303, 158 L.Ed.2d 32 (2004). But in Spencer, five

Justices suggested that Heck may not apply in such

circumstances. Spencer, 523 U.S. at 3, 118 S.Ct. 978.

The petitioner in Spencer had filed a federal habeas petition seeking to invalidate an order revoking his parole. While the habeas petition was pending, the petitioner’s term of imprisonment expired, and his habeas petition was consequently dismissed as moot. Justice Souter wrote a concurring opinion in which three other Justices joined, addressing the petitioner’s argument that if his habeas petition were mooted by his release, any § 1983 action would be barred under Heck, yet he would no longer have access to a federal habeas forum to challenge the validity of his parole revocation. Id. at 18–19, 118 S.Ct. 978
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(Souter, J., concurring). Justice Souter stated that in his view “Heck has no such effect,” and that “a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.” Id. at 21, 118 S.Ct. 978. Justice Stevens, dissenting, stated that he would have held the habeas petition in Spencer not moot, but agreed that “[g]iven the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear ... that he may bring an action under 42 U.S.C. § 1983.” Id. at 25, 118 S.Ct. 978 n.8 (Stevens, J., dissenting).
*613 Relying on the concurring and dissenting opinions in Spencer, we have held that the “unavailability of a remedy in habeas corpus because of mootness” permitted a plaintiff released from custody to maintain a § 1983 action for damages, “even though success in that action would imply the invalidity of the disciplinary proceeding that caused revocation of his good-time credits.” Nonnette v. Small, 316 F.3d 872, 876 (9th Cir. 2002). But we have limited Nonnette in recent years. Most notably, we held in Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015), that even where a plaintiff had no practical opportunity to pursue federal habeas relief while detained because of the short duration of his confinement, Heck bars a § 1983 action that would imply the invalidity of a prior conviction if the plaintiff could have sought invalidation of the underlying conviction via direct appeal or state post-conviction relief, but did not do so. Id. at 1192 & n.12.
2. Retrospective Relief Here, the majority of the plaintiffs’ claims for retrospective relief are governed squarely by Lyall. It is undisputed that all the plaintiffs not only failed to challenge their convictions on direct appeal but expressly waived the right to do so as a condition of their guilty pleas. The plaintiffs have made no showing that any of their convictions were invalidated via state post-conviction relief. We therefore hold that all but two of the plaintiffs’ claims for damages are foreclosed under Lyall.
Two of the plaintiffs, however, Robert Martin and Pamela Hawkes, also received citations under the ordinances that

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were dismissed before the state obtained a conviction. Hawkes was cited for violating the Camping Ordinance on July 8, 2007; that violation was dismissed on August 28, 2007. Martin was cited for violating the Disorderly Conduct Ordinance on April 24, 2009; those charges were dismissed on September 9, 2009. The complaint alleges two injuries stemming from these dismissed citations: (1) the continued inclusion of the citations on plaintiffs’ criminal records; and (2) the accumulation of a host of criminal fines and incarceration costs. Plaintiffs seek orders compelling the City to “expunge[ ] ... the records of any homeless individuals unlawfully cited or arrested and charged under [the Ordinances]” and “reimburse[ ] ... any criminal fines paid ... [or] costs of incarceration billed.”
With respect to these two incidents, the district court erred in finding that the plaintiffs’ Eighth Amendment challenge was barred by Heck. Where there is no “conviction or sentence” that may be undermined by a grant of relief to the plaintiffs, the Heck doctrine has no application. 512 U.S. at 486–87, 114 S.Ct. 2364; see also Wallace v. Kato, 549 U.S. 384, 393, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007).
Relying on Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the City argues that the Eighth Amendment, and the Cruel and Unusual Punishments Clause in particular, have no application where there has been no conviction. The City’s reliance on Ingraham is misplaced. As the Supreme Court observed in Ingraham, the Cruel and Unusual Punishments Clause not only limits the types of punishment that may be imposed and prohibits the imposition of punishment grossly disproportionate to the severity of the crime, but also “imposes substantive limits on what can be made criminal and punished as such.” Id. at 667, 97 S.Ct. 1401. “This [latter] protection governs the criminal law process as a whole, not only the imposition of punishment postconviction.” Jones, 444 F.3d at 1128.
*614 Ingraham concerned only whether “impositions outside the criminal process” — in that case, the paddling of schoolchildren — “constituted cruel and unusual punishment.” 430 U.S. at 667, 97 S.Ct. 1401. Ingraham did not hold that a plaintiff challenging the state’s power to criminalize a particular status or conduct in the first instance, as the plaintiffs in this case do, must first be convicted. If conviction were a prerequisite for such a challenge, “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 [Cruel
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and Unusual Punishments Clause] cannot be subject to the criminal process.” Jones, 444 F.3d at 1129. For those rare Eighth Amendment challenges concerning the state’s very power to criminalize particular behavior or status, then, a plaintiff need demonstrate only the initiation of the criminal process against him, not a conviction.
3. Prospective Relief The district court also erred in concluding that the plaintiffs’ requests for prospective injunctive relief were barred by Heck. The district court relied entirely on language in Wilkinson stating that “a state prisoner’s § 1983 action is barred (absent prior invalidation) ... no matter the relief sought (damages or equitable relief) ... if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81–82, 125 S.Ct. 1242. The district court concluded from this language in Wilkinson that a person convicted under an allegedly unconstitutional statute may never challenge the validity or application of that statute after the initial criminal proceeding is complete, even when the relief sought is prospective only and independent of the prior conviction. The logical extension of the district court’s interpretation is that an individual who does not successfully invalidate a first conviction under an unconstitutional statute will have no opportunity to challenge that statute prospectively so as to avoid arrest and conviction for violating that same statute in the future.
Neither Wilkinson nor any other case in the Heck line supports such a result. Rather, Wolff, Edwards, and Wilkinson compel the opposite conclusion.
Wolff held that although Preiser barred a § 1983 action seeking restoration of good-time credits absent a successful challenge in federal habeas proceedings, Preiser did not “preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid ... regulations.” Wolff, 418 U.S. at 555, 94 S.Ct. 2963. Although Wolff was decided before Heck, the Court subsequently made clear that Heck effected no change in the law in this regard, observing in Edwards that “[o]rdinarily, a prayer for ... prospective [injunctive] relief will not ‘necessarily imply’ the invalidity of a previous loss of good-time credits, and so may properly be brought under § 1983.” Edwards, 520 U.S. at 648, 117 S.Ct. 1584

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
(emphasis added). Importantly, the Court held in Edwards that although the plaintiff could not, consistently with Heck, seek a declaratory judgment stating that the procedures employed by state officials that deprived him of good-time credits were unconstitutional, he could seek an injunction barring such allegedly unconstitutional procedures in the future. Id. Finally, the Court noted in Wilkinson that the Heck line of cases “has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement,” Wilkinson, 544 U.S. at 81, 125 S.Ct. 1242 (emphasis added), alluding *615 to an existing confinement, not one yet to come.
The Heck doctrine, in other words, serves to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge. In context, it is clear that Wilkinson’s holding that the Heck doctrine bars a § 1983 action “no matter the relief sought (damages or equitable relief) ... if success in that action would necessarily demonstrate the invalidity of confinement or its duration” applies to equitable relief concerning an existing confinement, not to suits seeking to preclude an unconstitutional confinement in the future, arising from incidents occurring after any prior conviction and stemming from a possible later prosecution and conviction. Id. at 81–82, 125 S.Ct. 1242 (emphasis added). As Wilkinson held, “claims for future relief (which, if successful, will not necessarily imply the invalidity of confinement or shorten its duration)” are distant from the “core” of habeas corpus with which the Heck line of cases is concerned, and are not precluded by the Heck doctrine. Id. at 82, 125 S.Ct. 1242.
In sum, we hold that the majority of the plaintiffs’ claims for retrospective relief are barred by Heck, but both Martin and Hawkes stated claims for damages to which Heck has no application. We further hold that Heck has no application to the plaintiffs’ requests for prospective injunctive relief.
C. The Eighth Amendment At last, we turn to the merits — does the Cruel and Unusual Punishments Clause of the Eighth Amendment preclude the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter? We hold that it does, for essentially the same reasons articulated in the now-vacated Jones
20

opinion.
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways.” Ingraham, 430 U.S. at 667, 97 S.Ct. 1401. First, it limits the type of punishment the government may impose; second, it proscribes punishment “grossly disproportionate” to the severity of the crime; and third, it places substantive limits on what the government may criminalize. Id. It is the third limitation that is pertinent here.
“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Cases construing substantive limits as to what the government may criminalize are rare, however, and for good reason — the Cruel and Unusual Punishments Clause’s third limitation is “one to be applied sparingly.” Ingraham, 430 U.S. at 667, 97 S.Ct. 1401.
Robinson, the seminal case in this branch of Eighth Amendment jurisprudence, held a California statute that “ma[de] the ‘status’ of narcotic addiction a criminal offense” invalid under the Cruel and Unusual Punishments Clause. 370 U.S. at 666, 82 S.Ct. 1417. The California law at issue in Robinson was “not one which punishe[d] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration”; it punished addiction itself. Id. Recognizing narcotics addiction as an illness or disease — “apparently an illness which may be contracted innocently or involuntarily” — and observing that a “law which made a criminal offense of ... a disease would doubtless be universally thought to be an infliction of *616 cruel and unusual punishment,” Robinson held the challenged statute a violation of the Eighth Amendment. Id. at 666–67, 82 S.Ct. 1417.
As Jones observed, Robinson did not explain at length the principles underpinning its holding. See Jones, 444 F.3d at 1133. In Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), however, the Court elaborated on the principle first articulated in Robinson.
Powell concerned the constitutionality of a Texas law making public drunkenness a criminal offense. Justice Marshall, writing for a plurality of the Court,

Martin v. City of Boise, 920 F.3d 584 (2019)
19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
distinguished the Texas statute from the law at issue in Robinson on the ground that the Texas statute made criminal not alcoholism but conduct — appearing in public while intoxicated. “[A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant’s behavior in the privacy of his own home.” Id. at 532, 88 S.Ct. 2145 (plurality opinion).
The Powell plurality opinion went on to interpret Robinson as precluding only the criminalization of “status,” not of “involuntary” conduct. “The 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’ ....” Id. at 533, 88 S.Ct. 2145.
Four Justices dissented from the Court’s holding in Powell; Justice White concurred in the result alone. Notably, Justice White noted that many chronic alcoholics are also homeless, and that for those individuals, public drunkenness may be unavoidable as a practical matter. “For all practical purposes the public streets may be home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking. ... For some of these alcoholics I would think 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, 88 S.Ct. 2145 (White, J., concurring in the judgment).
The four dissenting Justices adopted a position consistent with that taken by Justice White: that under Robinson, “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change,” and that the defendant, “once intoxicated, ... could not prevent himself from appearing in public places.” Id. at 567, 88 S.Ct. 2145 (Fortas, J., dissenting). Thus, five Justices gleaned from Robinson the principle that “that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable
21

consequence of one’s status or being.” Jones, 444 F.3d at 1135; see also United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017).
This principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. As Jones reasoned, “[w]hether sitting, lying, and sleeping are *617 defined as acts or conditions, they are universal and unavoidable consequences of being human.” Jones, 444 F.3d at 1136. Moreover, any “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.” Id. As a result, just as the state may not criminalize the state of being “homeless in public places,” the state may not “criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” Id. at 1137.
Our holding is a narrow one. Like the Jones panel, “we in no way dictate 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 1138. We hold only that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” Id. That is, 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.8
We are not alone in reaching this conclusion. As one court has observed, “resisting the need to eat, sleep or engage in other life-sustaining activities is impossible. Avoiding public places when engaging in this otherwise innocent conduct is also impossible. ... As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively punish them for something for which they may not be convicted under the [E]ighth [A]mendment — sleeping, eating and other innocent conduct.” Pottinger v. City of Miami, 810 F.Supp. 1551, 1565 (S.D. Fla. 1992); see also Johnson v. City of Dallas, 860 F.Supp. 344, 350 (N.D. Tex. 1994) (holding that a “sleeping in public ordinance as applied against the homeless is unconstitutional”), rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995).9

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
Here, the two ordinances criminalize the simple act of sleeping outside on public property, whether bare or with a blanket or other basic bedding. The Disorderly *618 Conduct Ordinance, on its face, criminalizes “[o]ccupying, lodging, or sleeping in any building, structure or place, whether public or private” without permission. Boise City Code § 6-01-05. Its scope is just as sweeping as the Los Angeles ordinance at issue in Jones, which mandated that “[n]o person shall sit, lie or sleep in or upon any street, sidewalk or other public way.” 444 F.3d at 1123.
The Camping Ordinance criminalizes using “any of the streets, sidewalks, parks or public places as a camping place at any time.” Boise City Code § 9-10-02. The ordinance defines “camping” broadly:
The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at anytime between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep (including the laying down of bedding for the purpose of sleeping).
Id. It appears from the record that the Camping Ordinance is frequently enforced against homeless individuals with some elementary bedding, whether or not any of the other listed indicia of “camping” — the erection of temporary structures, the activity of cooking or making fire, or the storage of personal property — are present. For example, a Boise police officer testified that he cited plaintiff Pamela Hawkes under the Camping Ordinance for sleeping outside “wrapped in a blanket with her sandals
22

off and next to her,” for sleeping in a public restroom “with blankets,” and for sleeping in a park “on a blanket, wrapped in blankets on the ground.” The Camping Ordinance therefore can be, and allegedly is, enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the elements. We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court as to the plaintiffs’ requests for retrospective relief, except as such claims relate to Hawkes’s July 2007 citation under the Camping Ordinance and Martin’s April 2009 citation under the Disorderly Conduct Ordinance. We REVERSE and REMAND with respect to the plaintiffs’ requests for prospective relief, both declaratory and injunctive, and to the plaintiffs’ claims for retrospective relief insofar as they relate to Hawkes’ July 2007 citation or Martin’s April 2009 citation.10
OWENS, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the doctrine of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars the plaintiffs’ 42 U.S.C. § 1983 claims for damages that are based on convictions that have not been challenged on direct appeal or invalidated in state post-conviction relief. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1192 n.12 (9th Cir. 2015).
I also agree that Heck and its progeny have no application where there is no “conviction *619 or sentence” that would be undermined by granting a plaintiff’s request for relief under § 1983. Heck, 512 U.S. at 486–87, 114 S.Ct. 2364; see also Wallace v. Kato, 549 U.S. 384, 393, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). I therefore concur in the majority’s conclusion that Heck does not bar plaintiffs Robert Martin and Pamela Hawkes from seeking retrospective relief for the two instances in which they

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
received citations, but not convictions. I also concur in the majority’s Eighth Amendment analysis as to those two claims for retrospective relief.
Where I part ways with the majority is in my understanding of Heck’s application to the plaintiffs’ claims for declaratory and injunctive relief. In Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Supreme Court explained where the Heck doctrine stands today:

[A] state prisoner’s § 1983 action is

barred

(absent

prior

invalidation)—no matter the relief

sought (damages or equitable

relief), no matter the target of the

prisoner’s suit (state conduct

leading to conviction or internal

prison proceedings)—if success in

that action would necessarily

demonstrate the invalidity of

confinement or its duration.

Id. at 81–82. Here, the majority acknowledges this language in Wilkinson, but concludes that Heck’s bar on any type of relief that “would necessarily demonstrate the invalidity of confinement” does not preclude the prospective claims at issue. The majority reasons that the purpose of Heck is “to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge,” and so concludes that the plaintiffs’ prospective claims may proceed. I respectfully disagree.
A declaration that the city ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity of the plaintiffs’ prior convictions. Indeed, any time an individual challenges the constitutionality of a substantive criminal statute under which he has been convicted, he asks for a judgment that would necessarily demonstrate the invalidity of his conviction. And though neither the Supreme Court nor this court has squarely addressed Heck’s application to § 1983 claims challenging the constitutionality of a substantive criminal statute, I believe Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), makes clear that Heck prohibits such challenges. In Edwards, the Supreme Court

explained that although our court had recognized that Heck barred § 1983 claims challenging the validity of a prisoner’s confinement “as a substantive matter,” it improperly distinguished as not Heck-barred all claims alleging only procedural violations. 520 U.S. at 645, 117 S.Ct. 1584. In holding that Heck also barred those procedural claims that would necessarily imply the invalidity of a conviction, the Court did not question our conclusion that claims challenging a conviction “as a substantive matter” are barred by Heck. Id.; see also Wilkinson, 544 U.S. at 82, 125 S.Ct. 1242 (holding that the plaintiffs’ claims could proceed because the relief requested would only “render invalid the state procedures” and “a favorable judgment [would] not ‘necessarily imply the invalidity of [their] conviction[s] or sentence[s]’ ” (emphasis added) (quoting Heck, 512 U.S. at 487, 114 S.Ct. 2364)).
Edwards thus leads me to conclude that an individual who was convicted under a criminal statute, but who did not challenge the constitutionality of the statute at the time of his conviction through direct appeal or post-conviction relief, cannot do so in the first instance by seeking declaratory or injunctive relief under § 1983. See *620 Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1316 n.9 (11th Cir. 2005) (assuming that a § 1983 claim challenging “the constitutionality of the ordinance under which [the petitioner was convicted]” would be Heck-barred). I therefore would hold that Heck bars the plaintiffs’ claims for declaratory and injunctive relief.
We are not the first court to struggle applying Heck to “real life examples,” nor will we be the last. See, e.g., Spencer v. Kemna, 523 U.S. 1, 21, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (Ginsburg, J., concurring) (alterations and internal quotation marks omitted) (explaining that her thoughts on Heck had changed since she joined the majority opinion in that case). If the slate were blank, I would agree that the majority’s holding as to prospective relief makes good sense. But because I read Heck and its progeny differently, I dissent as to that section of the majority’s opinion. I otherwise join the majority in full.
All Citations
920 F.3d 584, 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762

23

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762
Footnotes

1

Although Judge M. Smith does not credit the photograph to any source, an internet search suggests that the original

photograph is attributable to Los Angeles County. See Implementing the Los Angeles County Homelessness Initiative,

L.A.

County,

http://homeless.lacounty.gov/implementing-the-los-angeles-county-homeless-initiative/

[https://web.archive.org/web/?20170405225036/homeless.lacounty.gov/implementing-the-los-angeles-county-ho

meless-initiative/#]; see also Los Angeles County (@CountyofLA), Twitter (Nov. 29, 2017, 3:23 PM),

https://twitter.com/CountyofLA/status/936012841533894657.

1

With almost 553,000 people who experienced homelessness nationwide on a single night in January 2018, this issue

affects communities across our country. U.S. Dep’t of Hous. & Urban Dev., Office of Cmty. Planning & Dev., The 2018

Annual Homeless Assessment Report (AHAR) to Congress 1 (Dec. 2018),

https://www.hudexchange.info/resources/documents/2018-AHAR-Part-1.pdf.

2

Our court previously adopted the same Eighth Amendment holding as the panel in Jones v. City of Los Angeles, 444

F.3d 1118, 1138 (9th Cir. 2006), but that decision was later vacated. 505 F.3d 1006 (9th Cir. 2007).

3

That most of these opinions were unpublished only buttresses my point: It is uncontroversial that Powell does not

prohibit the criminalization of involuntary conduct.

4

Transcript of Oral Argument at 14, Hughes v. United States, ––– U.S. ––––, 138 S.Ct. 1765, 201 L.Ed.2d 72 (2018) (No.

17-155).

5

Id. at 49.

6

Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. (forthcoming 2019),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090620.

7

Justice Black has also observed that solutions for challenging social issues should be left to the policymakers:

I cannot say that the States should be totally barred from one avenue of experimentation, the criminal process, in

attempting to find a means to cope with this difficult social problem .... [I]t seems to me that the present use of

criminal sanctions might possibly be unwise, but I am by no means convinced that any use of criminal sanctions

would inevitably be unwise or, above all, that I am qualified in this area to know what is legislatively wise and

what is legislatively unwise.

Powell, 392 U.S. at 539–40, 88 S.Ct. 2145 (Black, J., concurring).

8

Pursuant to Fourth Circuit Local Rule 35(c), “[g]ranting of rehearing en banc vacates the previous panel judgment

and opinion.” I mention Manning, however, as an illustration of other courts’ reasoning on the Eighth Amendment

issue.

9

Matt Tinoco, LA Counts Its Homeless, But Counting Everybody Is Virtually Impossible, LAist (Jan. 22, 2019, 2:08 PM),

https://laist.com/2019/01/22/los_angeles_homeless_count_2019_how_volunteer.php. The panel conceded the

imprecision of such counts in its opinion. See Martin, 902 F.3d at 1036 n.1 (acknowledging that the count of

homeless individuals “is not always precise”). But it went on to disregard that fact when tying a city’s ability to

enforce its laws to these counts.

10 The U.S. Department of Housing and Urban Development’s 2018 Annual Homeless Assessment Report to Congress

24

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762

reveals that municipalities within our circuit have among the highest homeless populations in the country. In Los Angeles City and County alone, 49,955 people experienced homelessness in 2018. The number was 12,112 people in Seattle and King County, Washington, and 8,576 people in San Diego City and County, California. See supra note 1, at 18, 20. In 2016, Las Vegas had an estimated homeless population of 7,509 individuals, and California’s Santa Clara County had 6,556. Joaquin Palomino, How Many People Live On Our Streets?, S.F. Chronicle (June 28, 2016), https://projects.sfchronicle.com/sf-homeless/numbers.

11 Cities can instead provide sufficient housing for every homeless individual, but the cost would be prohibitively

expensive for most local governments. Los Angeles, for example, would need to spend $403.4 million to house every

homeless individual not living in a vehicle. See Los Angeles Homeless Services Authority, Report on Emergency

Framework

to

Homelessness

Plan

13

(June

2018),

https://assets.documentcloud.org/documents/4550980/LAHSA-ShelteringReport.pdf. In San Francisco, building new

centers to provide a mere 400 additional shelter spaces was estimated to cost between $10 million and $20 million,

and would require $20 million to $30 million to operate each year. See Heather Knight, A Better Model, A Better

Result?, S.F. Chronicle (June 29, 2016), https://projects.sfchronicle.com/sfhomeless/shelters. Perhaps these

staggering sums are why the panel went out of its way to state that it “in no way dictate[s] to the City that it must

provide sufficient shelter for the homeless.” Martin, 902 F.3d at 1048.

12 Indeed, in the few short months since the panel’s decision, several cities have thrown up their hands and

abandoned any attempt to enforce such laws. See, e.g., Cynthia Hubert, Sacramento County Cleared Homeless

Camps All Year. Now It Has Stopped Citing Campers, Sacramento Bee (Sept. 18, 2019, 4:27 PM),

https://www.sacbee.com/news/local/homeless/article218605025.html (“Sacramento County park rangers have

suddenly stopped issuing citations altogether after a federal court ruling this month.”); Michael Ellis Langley,

Policing

Homelessness,

Golden

State

Newspapers

(Feb.

22,

2019),

http://www.goldenstatenewspapers.com/tracy_press/news/policing-homelessness/article_5fe6a9ca-3642-11e9-9b

25-37610ef2dbae.html (Sheriff Pat Withrow stating that, “[a]s far as camping ordinances and things like that, we’re

probably holding off on [issuing citations] for a while” in light of Martin v. City of Boise); Kelsie Morgan, Moses Lake

Sees Spike in Homeless Activity Following 9th Circuit Court Decision, KXLY (Oct. 2, 2018, 12:50 PM),

https://www.kxly.com/news/moses-lake-sees-spike-in-homeless-activityfollowing-9th-circuit-court-decision/801772

571 (“Because the City of Moses Lake does not currently have a homeless shelter, city officials can no longer

penalize people for sleeping in public areas.”); Brandon Pho, Buena Park Residents Express Opposition to Possible

Homeless

Shelter,

Voice

of

OC

(Feb.

14,

2019),

https://voiceofoc.org/2019/02/buena-park-residents-express-opposition-to-possible-homeless-shelter/ (stating that

Judge David Carter of the U.S. District Court for the Central District of California has “warn[ed] Orange County cities

to get more shelters online or risk the inability the enforce their anti-camping ordinances”); Nick Welsh, Court Rules

to Protect Sleeping in Public: Santa Barbara City Parks Subject of Ongoing Debate, Santa Barbara Indep. (Oct. 31,

2018), http://www.independent.com/news/2018/oct/31/court-rules-protect-sleeping-public/?jqm (“In the wake of

what’s known as ‘the Boise decision,’ Santa Barbara city police found themselves scratching their heads over what

they could and could not issue citations for.”).

13 In 2017, for example, San Francisco received 32,272 complaints about homeless encampments to its 311-line. Kevin Fagan, The Situation On The Streets, S.F. Chronicle (June 28, 2018), https://projects.sfchronicle.com/sf-homeless/2018-state-of-homelessness.

14 See Heater Knight, It’s No Laughing Matter—SF Forming Poop Patrol to Keep Sidewalks Clean, S.F. Chronicle (Aug.

14,

2018),

https://www.sfchronicle.com/bayarea/heatherknight/article/It-s-nolaughing-matter-SF-forming-Poop-13153517.ph

p.

25

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762

15 See Anna Gorman and Kaiser Health News, Medieval Diseases Are Infecting California’s Homeless, The Atlantic (Mar.

8,

2019),

https://www.theatlantic.com/health/archive/2019/03/typhus-tuberculosismedieval-diseases-spreading-homeless/5

84380/ (describing the recent outbreaks of typhus, Hepatitis A, and shigellosis as “disaster[s] and [a] public-health

crisis” and noting that such “diseases spread quickly and widely among people living outside or in shelters”).

16 Scott Johnson and Peter Kiefer, LA’s Battle for Venice Beach: Homeless Surge Puts Hollywood’s Progressive Ideals to

the

Test,

Hollywood

Reporter

(Jan.

11,

2019,

6:00

AM),

https://www.hollywoodreporter.com/features/las-homeless-surge-puts-hollywoods-progressive-ideals-test-117459

9.

17 See U.S. Dep’t of Hous. & Urban Dev., PIT Data Since 2007,

https://www.hudexchange.info/resources/documents/2007-2018-PITCounts-by-CoC.xlsx; U.S. Dep’t of Hous. &

Urban

Dev.,

HIC

Data

Since

2007,

https://www.hudexchange.info/resources/documents/2007-2018HIC-Counts-by-CoC.xlsx. Boise is within Ada

County and listed under CoC code ID-500.

1

1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large 440, 441 (1689) (Section 10 of the English Declaration of Rights)

(“excessive Baile ought not to be required, nor excessive Fines imposed; nor cruell and unusuall Punishments

inflicted.”).

2

Jones, of course, was vacated and lacks precedential value. 505 F.3d 1006 (9th Cir. 2007). But the panel here

resuscitated Jones’s errant holding, including, apparently, its application of the Cruel and Unusual Punishments

Clause in the absence of a criminal conviction. We should have taken this case en banc to correct this

misinterpretation of the Eighth Amendment.

3

We have emphasized the need to proceed cautiously when extending the reach of the Cruel and Unusual

Punishments Clause beyond regulation of the methods of punishment that may be inflicted upon conviction for an

offense. See United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985) (repeating Ingraham’s direction that “this

particular use of the cruel and unusual punishment clause is to be applied sparingly” and noting that Robinson

represents “the rare type of case in which the clause has been used to limit what may be made criminal”); see also

United States v. Ayala, 35 F.3d 423, 426 (9th Cir. 1994) (limiting application of Robinson to crimes lacking an actus

reus). The panel’s holding here throws that caution to the wind.

4

Judge Friendly also expressed “considerable doubt that the cruel and unusual punishment clause is properly

applicable at all until after conviction and sentence.” Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973).

1

The United States Department of Housing and Urban Development (“HUD”) requires local homeless assistance and

prevention networks to conduct an annual count of homeless individuals on one night each January, known as the

PIT Count, as a condition of receiving federal funds. State, local, and federal governmental entities, as well as private

service providers, rely on the PIT Count as a “critical source of data” on homelessness in the United States. The

parties acknowledge that the PIT Count is not always precise. The City’s Director of Community Partnerships, Diana

Lachiondo, testified that the PIT Count is “not always the ... best resource for numbers,” but also stated that “the

point-in-time count is our best snapshot” for counting the number of homeless individuals in a particular region, and

that she “cannot give ... any other number with any kind of confidence.”

2

The record suggests that BRM provides some limited additional non-emergency shelter programming which, like the

Discipleship Program, has overtly religious components.

26

Martin v. City of Boise, 920 F.3d 584 (2019) 19 Cal. Daily Op. Serv. 2944, 2019 Daily Journal D.A.R. 2762

3

The intake form states in relevant part that “We are a Gospel Rescue Mission. Gospel means ‘Good News,’ and the

Good News is that Jesus saves us from sin past, present, and future. We would like to share the Good News with

you. Have you heard of Jesus? ... Would you like to know more about him?”

4

The parties dispute the extent to which BRM actually enforces the 17- and 30-day limits.

5

Standing to pursue retrospective relief is not in doubt. The only threshold question affecting the availability of a

claim for retrospective relief — a question we address in the next section — is whether such relief is barred by the

doctrine established in Heck.

6

Although the SAC is somewhat ambiguous regarding which of the plaintiffs seeks prospective relief, counsel for the

plaintiffs made clear at oral argument that only two of the plaintiffs, Martin and Anderson, seek such relief, and the

district court considered the standing question with respect to Martin and Anderson only.

7

Plaintiff Pamela Hawkes was convicted of violating the Camping Ordinance or Disorderly Conduct Ordinance on

twelve occasions; although she was usually sentenced to time served, she was twice sentenced to one additional

day in jail.

8

Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether

because they have the means to pay for it or because it is realistically available to them for free, but who choose not

to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping

outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular

times or in particular locations might well be constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might

an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some

other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for

lacking the means to live out the “universal and unavoidable consequences of being human” in the way the

ordinance prescribes. Id. at 1136.

9

In Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000), the Eleventh Circuit upheld an anti-camping

ordinance similar to Boise’s against an Eighth Amendment challenge. In Joel, however, the defendants presented

unrefuted evidence that the homeless shelters in the City of Orlando had never reached capacity and that the

plaintiffs had always enjoyed access to shelter space. Id. Those unrefuted facts were critical to the court’s holding.

Id. As discussed below, the plaintiffs here have demonstrated a genuine issue of material fact concerning whether

they have been denied access to shelter in the past or expect to be so denied in the future. Joel therefore does not

provide persuasive guidance for this case.

10 Costs shall be awarded to the plaintiffs.

27

 
 Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 1 of 25

Allen M. Gardner, #456723 (DC) Michael E. Bern, #994791 (DC) Scott C. Jones, #986308 (DC) Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004-1304 Phone: (202) 637-2200 Fax: (202) 637-2201 Email: Allen.Gardner@lw.com Email: Michael.Bern@lw.com Email: Scott.Jones@lw.com
Attorneys for Plaintiffs

Howard A. Belodoff, ISB # 2290 Idaho Legal Aid Services, Inc. 1447 South Tyrell Dr. Boise, ID 83706 Phone: (208) 807-2323 Fax: (208) 342-2561 Email: howardbelodoff@idaholegalaid.org
Eric Tars # 94857 (PA) National Law Center
on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Phone: (202) 638-2535 Fax: (202) 628-2737 Email: etars@nlchp.org

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ROBERT MARTIN, et al., Plaintiffs,
v. CITY OF BOISE, et al.,
Defendants.

) Case No. 1:09-cv-0540-REB )
) THIRD AMENDED COMPLAINT FOR ) DECLARATORY AND INJUNCTIVE ) RELIEF AND MONETARY DAMAGES )
) Eighth Amendment; 42 U.S.C. § 1983; 28 ) U.S.C. §§ 2201, 2202 )

COME NOW the Plaintiffs Robert Martin, Robert Anderson, and Pamela Hawkes, and for a cause of action against defendants the City of Boise and Michael Masterson, in his official capacity as Interim Chief of Police of the Boise Police Department (hereinafter “Defendants”), hereby state and allege as follows: PRELIMINARY STATEMENT
1. In Boise, Idaho, hundreds of people experience homelessness on any given night. There are only beds for approximately 450 people in area emergency shelters, a number that is far
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exceeded by the number of individuals experiencing homelessness. Even when Boise’s shelters run out of beds and place mats on every available floor space, they often still do not have enough room to meet the needs of those experiencing homelessness in Boise.
2. Many of those emergency shelter beds, moreover, are not available for persons with certain disabilities or who run afoul of restrictive shelter policies (such as length of stay limitations). Some shelters are also overtly religious.
3. Those individuals who are not able to find shelter have no choice but to sleep in the public places of Boise in violation of laws that prohibit “camping” or sleeping in public places. Boise police officers routinely issue camping citations to persons experiencing homelessness for sleeping, sitting, or talking with friends in public places—activities homeless persons should have the freedom to engage in without fear of police interference. Boise police officers also issue disorderly conduct citations to persons experiencing homelessness merely for sleeping in discrete public places. These citations lead to convictions and jail time, which make it more difficult for Boise’s homeless population to obtain and keep employment and long-term housing. Thus, they continue to sleep in public places despite the constant fear of being issued a citation or arrested by police.
4. This is an action brought by persons who are homeless and who are threatened with citation or arrest under two Boise Municipal Code ordinances: (1) § 7-3A-2(A),1 which prohibits camping on streets, in parks, or in public places at any time; and (2) § 5-2-3(A),2 which prohibits sleeping in public as “disorderly conduct” (together, the “Ordinances”) The Defendants have used the Ordinances to cite and arrest individuals who cannot avoid violating these laws because they
1 Formerly § 9-10-02. 2 Formerly § 6-01-05(A).
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are experiencing homelessness and there is no shelter available to them. In effect, Defendants have “criminalized” homelessness and these laws violate the protections of the Eighth Amendment of the United States Constitution.
5. Plaintiffs bring this action for declaratory and injunctive relief and monetary damages pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202. Defendants, under color of state law, have on an ongoing basis violated Plaintiffs’ rights under the Eighth Amendment to the United States Constitution. Plaintiffs seek this relief to vindicate their rights under the Eighth Amendment, as applied to the States through the Fourteenth Amendment.
6. The Eighth Amendment “preclude[s] the enforcement of a [law] prohibiting sleeping outside against homeless individuals with no access to alternative shelter.” Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019). Owing to capacity limits, length of stay limitations, and other policies that limit shelter access for particular individuals, there is a credible risk that shelter may be unavailable to individuals experiencing homelessness in Boise, including Plaintiffs, on a given night. As the Ordinances are enforced by Defendants, such individuals run a credible risk of being issued a citation despite the unavailability of shelter.
7. There are substantially more individuals experiencing homelessness in Boise than there are available beds at homeless shelters. It is therefore impossible for all the people experiencing homelessness in Boise’s to obtain shelter on any given night. Nevertheless, Defendants continue to enforce criminal laws against homeless individuals for sleeping outside. This conduct violates the Eighth Amendment to the United States Constitution, and there is no remaining legal basis to deny Plaintiffs the relief they seek.
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JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3) and
(4), and 1367. Plaintiffs bring this action under 42 U.S.C. § 1983 to vindicate rights established by the Eighth Amendment of the United States Constitution. Plaintiffs also seek relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
9. Venue in this action is proper in the District of Idaho under 28 U.S.C. § 1391(b), as the Defendants are located in the District of Idaho and all the events and/or omissions giving rise to the claims complained of herein have occurred or will occur in the District. PLAINTIFFS
10. Plaintiff ROBERT ANDERSON is a Boise resident experiencing homelessness. Anderson suffers from various disabilities including bipolar disorder, schizophrenia, PTSD, depression, mixed personality disorder, and anxiety. Like many other individuals experiencing homelessness, Anderson has cycled in and out of homelessness. He has been homeless since February 2015. Anderson has been sleeping in an emergency shelter bed and does not anticipate having other housing in the future. Anderson received a camping citation on September 1, 2007. He had been staying at the Boise Rescue Mission shelter, but was forced to leave because of the shelter’s policy of allowing men to stay for only 17 days at a time unless they enroll in the shelter’s religious programming. He and some other men slept in the foothills, in an area they believed was outside of the Boise city limits. At approximately 8:00 a.m. the next morning, however, a Boise police officer found them and issued camping citations. Anderson believes that the officer specifically sought out people experiencing homelessness to whom he could issue citations. Anderson was convicted and served one day incarceration and received a $25.00 fine, which he could not afford to pay.
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11. Plaintiff ROBERT WILLIAM MARTIN is an individual experiencing homelessness who lives in Idaho and is a former resident of Boise. Martin identifies as a pagan. Martin has been experiencing homelessness on and off since he was eighteen years old. Martin suffers from a mental illness and a physical disability, which prevent him from maintaining employment. He has been prescribed anti-psychotic, anti-depression, and anti-anxiety medications. In the past, Martin has stayed at the Interfaith Sanctuary shelter with his then-wife and small child, but Interfaith Sanctuary asked Martin and his family to leave because they had too many belongings, mostly consisting of items for their then-toddler. He tried to stay at the Boise Rescue Mission’s River of Life shelter but at one point was told not to return because his insomnia made it difficult for him to wake up at the time the shelter required. Martin received a camping citation on March 21, 2009. He was sleeping in the bushes near the I-84 highway not far from the shelter where his then-wife and son were sleeping because he could not stay at any of the shelters in Boise that night. He told the Boise police officer who cited him that he was unable to stay at a shelter, but the officer issued a citation anyway. Martin pled guilty because he did not have the funds to hire an attorney and was afraid that challenging the citation would result in additional court costs and incarceration. Since he received his camping citation, officers have threatened Martin with more camping citations and cited him under other statutes for sleeping in public places. On April 24, 2009, Martin received a citation for disorderly conduct merely for sleeping outside the Corpus Christi day shelter. Martin had been wandering around all night looking for a place to sleep because he could not stay at any of the shelters. At four or five in the morning he decided to sit down by Corpus Christi day shelter and wait for it to open at 7:00 a.m. He dozed off while waiting and received a citation as a result. That charge was subsequently dismissed on September 9, 2009. On September 9, 2012, Martin received a camping citation for
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sleeping outside the Interfaith Sanctuary shelter. Upon information and belief, Martin pled guilty because he did not have the funds to hire an attorney and was afraid that challenging the citation would result in additional court costs and incarceration. Martin’s son lives in Boise and, upon information and belief, Martin visits his son regularly for extended periods of time. Because Martin is experiencing homelessness and lacks stable housing, he will be forced to sleep outside on any evening when he is in Boise and Boise’s shelters are full or otherwise unavailable to him.
12. Plaintiff PAMELA S. HAWKES was a Boise resident experiencing homelessness. She received eleven different camping citations from Boise police officers in 2006 and 2007. One citation, issued on July 8, 2007, was dismissed on August 28, 2007. She also received a disorderly conduct citation on July 24, 2007. These citations resulted in periods of two to four days of incarceration per citation as well as fines. She often had no choice but to sleep in public places because she could not find space in Boise shelters. She left Boise because she feared that Boise police officers would continue to cite and arrest her pursuant to former § 9-10-02, and she did not have the ability to pay more criminal fines. DEFENDANTS
13. Defendant CITY OF BOISE (hereinafter “City”) is a municipal corporation, organized under the laws of the State of Idaho, with the capacity to sue and be sued. The City is the legal and political governmental entity responsible for the actions of the Boise Police Department, its officials, agents, and employees. The City is sued in its own right and on the basis of the acts or omissions of its officials, agents, and employees who were following the City’s ordinances and policies.
14. Defendant MICHAEL MASTERSON has been the City’s Interim Chief of Police since approximately October 2019. He was previously the Chief of Police from approximately
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2005 to 2015. As Interim Chief of Police he is responsible for the administration and operation of the Department, and ultimately, for the enforcement of Boise Municipal Code §§ 7-3A-2(A) and 5-2-3(A). Under his direction, Boise police officers have issued numerous citations to Plaintiffs for allegedly violating former Sections 9-10-02 and 6-01-05(A) and have threatened Plaintiffs with citations and/or arrest. Chief Masterson is sued in his official capacity. FACTUAL ALLEGATIONS
A. Legal Background 15. Boise has two ordinances that criminally punish sleeping outside in public places even with respect to individuals who lack alternative shelter. The language of both ordinances has changed repeatedly in the past decade. 16. The first Boise ordinance that criminally punishes sleeping outside is Boise City Code § 5-2-3(A) (formerly § 6-01-05 (2009)) (the “Disorderly Conduct Ordinance”). In 2009, this ordinance banned “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.” Boise City Code § 6-01-05 (2009). 17. The second Boise ordinance that criminally punishes sleeping outside is Boise City Code § 7-3A-2(A) (formerly § 9-10-02 (2009)) (the “Camping Ordinance”). In 2009, this ordinance banned use of “any of the streets, sidewalks, parks, or public places as a camping place at any time.” 18. In 2009, in response to this litigation, the City amended the Camping Ordinance to define “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” Boise City Code § 9-10-02 (2009). 19. In 2009 the Department promulgated a “Special Order,” effective as of January 1, 2010, that purported to prohibit enforcement of either the Camping Ordinance or the Disorderly
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Conduct Ordinance against any person experiencing homelessness on any night when no shelter had “available overnight space.”
20. In 2014 the City expressly codified the Special Order’s mandate that “[l]aw enforcement officers shall not enforce [the ordinances] when the individual is on public property and there is no available overnight shelter.” Boise City Code § 5-2-3(B)(1) (formerly § 6-0105(D) (2014)); id. § 7-3A-2(B) (formerly § 9-10-02 (2014)). “[A]vailable overnight shelter” is defined as a “public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness, at no charge.” Shelter is “considered available” even if an individual cannot utilize it, provided that the reason the individual cannot utilize it is the individual’s “voluntary actions, such as intoxication, drug use, unruly behavior, or violation of shelter rules.”
21. City police implement this enforcement prohibition through a two-step procedure known as the “Shelter Protocol.” Under this protocol, if any shelter in the City reaches capacity on a given night, the shelter is asked to notify the police at roughly 11:00 pm. If all shelters are full on the same night, police are to refrain from enforcing either ordinance.
22. Under the Shelter Protocol, shelters have the discretion to determine whether they are full, and whether to report themselves as full. Although the BRM has exhausted its capacity on certain nights, and/or forced individuals to sleep on the floor in storage rooms on other nights, the BRM has never reported that its shelters are full or that all the beds are full and persons have to sleep on the floor in a dining storage room.
23. The Shelter Protocol does not account for why shelter might be unavailable on an individual-specific basis, i.e., if an individual cannot access a shelter for the night because he has stayed there in excess of the shelter-imposed maximum on consecutive overnight stays. For
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instance, the Shelter Protocol does not account for situations in which an individual may be prohibited from staying at a particular shelter, is not allowed to stay due to stay limitations or disabilities, or when an individual objects to a shelter’s pervasively religious environment or religious activities.
24. On information and belief, to the extent that any shelter does not contact the BPD on a given night, the BPD enforces the Ordinances without regard to whether the particular individual at issue may or may not have shelter available to him or her.
B. Homelessness in Boise 25. Federal law defines a “homeless individual” to include one who lacks a fixed, regular, and adequate night-time residence, or one who resides in a shelter, transitional housing, or a place not ordinarily used for sleeping accommodations, such as streets, automobiles, abandoned buildings, parks or other public spaces. Stewart B. McKinney Homeless Assistance Act of 1987 § 103(a), 42 U.S.C. § 11302(a) (2000). A homeless child is also an “individual[] who lack[s] a fixed, regular, and adequate nighttime residence.” 42 U.S.C. § 11434a(2)(A). 26. “Point in Time” (“PIT”) counts are the primary method of determining the number of homeless individuals in Boise. 27. The United States Department of Housing and Urban Development requires local homeless assistance and prevention networks to conduct a PIT count one night every January, and PIT counts are regarded as a “critical source of data” on homelessness. See Martin v. City of Boise, 920 F.3d 584, 604 n.1 (9th Cir. 2019). 28. The PIT count includes a survey of the people experiencing unsheltered homelessness (those residing in places not meant for habitation on the night of the count) and those experiencing sheltered homelessness (those who are inside on the night of the count).
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29. The City contracted with the Institute for Community Alliances in 2019 to coordinate the PIT Survey for Ada County—the region which includes Boise. To survey people experiencing unsheltered homelessness, volunteers are recruited and trained to visit known locations where such individuals may be found and to interview them about their arrangement. As it regards people experiencing homelessness in shelters, relevant homeless service providers conduct a count and provide a number.
30. The most recent PIT count in Boise City / Ada County identified a total of 713 individuals experiencing homelessness. 61 of those individuals were unsheltered on the night of the count. The remainder of the individuals were sheltered in a variety of places, including Sanctuary and BRM. See https://icalliances.org/2019-bcac-point-in-time-housing-inventorycount.
31. The PIT count is ultimately always under-inclusive, for multiple reasons. In past counts, volunteers have dropped out at the last minute, missed training sessions, did not understand how to properly conduct the count, and failed to check locations where homeless individuals were known to frequent or have hidden themselves to avoid police interactions or receiving a citation for sleeping on public property when no alternative shelter is available.
32. The City police have also, in the past, increased patrols during the PIT survey, likely thwarting participation and scaring those experiencing homelessness into hiding, where they are difficult to identify. The PIT counts also do not account for the substantial number of people experiencing homelessness who are in jail on the night of the survey. This number is substantially higher than the number of people experiencing homelessness who are in jail throughout other periods of the year.
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33. In sum, the real number of individuals experiencing homelessness in Boise is greater—and likely significantly greater—than the number reported on the PIT count.
34. Boise’s homeless population consists of single men and women, couples, and single- and two-parent families with children. An increasing number of people experiencing homelessness in Boise are military veterans who have returned to the United States after serving several tours of duty in Iraq and Afghanistan.
35. A substantial number of individuals experiencing homelessness in Boise are also children. The Boise Independent District has identified between 799 and 990 students as experiencing homelessness over the course of a given school year since 2010, with 836 in 20182019, the most recent year for which data is available. https://www.sde.idaho.gov/federalprograms/homeless/files/general/Homeless-by-District-FY11-19-12-10-2019.xlsx.
36. Many persons experiencing homelessness in Boise have difficulty maintaining employment because jobs are not available, they lack sufficient skills and education, and/or they have physical or mental disabilities.
37. Many people experiencing homelessness in Boise, even those who are currently sheltered, are considered chronically homeless. “Chronically homeless’ individuals are those who have been experiencing homelessness for more than a year or who have had at least four episodes of homelessness in the last three years.” See 24 C.F.R. § 91.5.
38. Individuals experiencing homelessness also interact the most with the Boise Police Department. But, as Boise’s 2006 Special Report on Interactions Between the Boise Police Department and the Homeless (“Ombudsman Report”) explains, “[p]olice officers are not trained to perform social work functions; yet, persons experiencing homelessness often become the
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responsibility of law enforcement agencies because of the minor misdemeanors they commit.” Ombudsman Report at 2.
39. The Ombudsman Report indicated that members of the Boise Police Department were inadequately trained and prepared to deal with the problems of Boise’s homeless population, including mental illness, alcohol or dependence, and lack of shelter and other resources. Id. at 2, 22, 24-25, 44.
C. Effect of Enforcement of the Disorderly Conduct and Camping Ordinances 40. Repeat citations or convictions under the Disorderly Conduct and Camping Ordinances for camping or sleeping in public can have a detrimental effect on an individual’s health and his or her ability to find and continue employment, procure and maintain housing, and receive government assistance or benefits. 41. Defendants’ actions pose a health risk to the homeless population of Boise because the constant need to keep moving to avoid citations under these ordinances prevents these individuals from sleeping. Sleep is a physical and mental necessity for people to properly function. Lack of sleep causes disruptions in cognitive function and exacerbates a myriad of physical and mental health problems. 42. Individuals experiencing homelessness, like Plaintiffs, typically cannot afford to pay the fines associated with violations of the Disorderly Conduct and Camping Ordinances. 43. These individuals often do not have a permanent address or telephone, which makes it difficult for them to receive communications from the court. They also often lack reliable transportation. 44. If these individuals fail to appear in court, the court will issue a warrant for their arrest. That warrant can result in additional time in jail and fines for failing to appear.
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45. If these fines are not paid, the homeless individual may be subject to a civil contempt order. Incarceration is also disruptive and expensive. And an individual experiencing homelessness can be charged the costs for his or her incarceration.
46. Individuals experiencing homelessness must disclose criminal convictions, even for minor infractions, on applications for public and private housing. These convictions become a matter of public record. As a result, the convictions may cause them to lose the opportunity to obtain permanent public and private housing. Additionally, an individual may lose a housing placement if he or she is incarcerated.
47. Conviction and incarceration for camping or sleeping outside can also interfere with the ability to obtain and maintain Social Security disability benefits. Recipients may not receive benefits for any period in which they are incarcerated. In addition, those applying for benefits may miss crucial hearings or deadlines while incarcerated, delaying their receipt of much needed income and the ability to access medical care with Medicaid eligibility.
48. Likewise, individuals must disclose criminal convictions when they apply for employment, and even minor infractions may make a potential employer less likely to hire an applicant. Missing work due to required court appearances or because of periods of incarceration may lead to the loss of employment and income.
49. Defendants’ policy, custom, and practice of issuing citations to, arresting, and harassing individuals experiencing homelessness like Plaintiffs under the Disorderly Conduct and Camping Ordinances, under the circumstances alleged herein, has the effect of “criminalizing” homelessness. These measures do not accomplish any significant or legitimate public policy goal. Instead, they perpetuate the cycle of homelessness by decreasing opportunities for homeless individuals to find housing and gainful employment and to take care of their health needs.
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50. “[T]he criminalization of homelessness does nothing to address the underlying causes of homelessness and often serves to exacerbate them. . . . It serves only to move people away from services and causes them to acquire a criminal record, thus making it even more difficult for them to obtain employment and housing.” Ombudsman’s Report at 5 (summarizing problems described in The National Coalition for the Homeless and The National Law Center on Homelessness & Poverty, A Dream Denied: The Criminalization of Homelessness in U.S. Cities (2006).
51. The U.S. Interagency Council on Homelessness states, “[c]riminalization undermines real solutions.” Moreover, “[i]n addition to violating domestic law, criminalization measures may also violate international human rights law, specifically the Convention Against Torture and International Covenant on Civil and Political Rights.” U.S. Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness 7, 8 (2012). Numerous international human rights monitors have condemned the criminalization of homelessness in the U.S. as a violation of our human rights treaty obligations.
52. And, as the United States has recognized, “[c]riminalizing public sleeping in cities with insufficient housing and support for homeless individuals does not improve public safety outcomes or reduce the factors that contribute to homelessness.” See Statement of Interest of the United States at 15, Dkt No. 276.
53. The U.S. Department of Housing & Urban Development (HUD) likewise recognizes that “criminalization policies further marginalize men and women who are experiencing homelessness, fuel inflammatory attitudes, and may even unduly restrict constitutionally protected liberties and violate our international human rights obligations. Moreover, there is ample evidence that alternatives to criminalization policies can adequately
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balance the needs of all parties.” U.S. Dept. of Housing & Urban Development, Decriminalizing

Homelessness,

https://www.hudexchange.info/homelessness-assistance/alternatives-to-

criminalizing-homelessness/ (last visited Mar. 7, 2020). Since 2015, HUD has provided extra

points on its grant competitions to applicants who can demonstrate they are implementing specific

strategies to end the criminalization of homelessness. See U.S. Dept. of Housing & Urban

Development, NOTICE OF FUNDING AVAILABILITY FOR THE 2019 CONTINUUM OF CARE PROGRAM

COMPETITION, 64 (2019), https://files.hudexchange.info/resources/documents/FY-2019-CoC-

Program-Competition-NOFA.pdf

D. Availability of Shelter

54. In Boise, the need for shelter space far exceeds the availability of shelter space.

55. Three shelters provide emergency beds to individuals experiencing homelessness

in Boise: Interfaith Sanctuary (“Sanctuary”), located at 1620 W. River Street in Boise, and two

shelters run by Boise Rescue Mission (“BRM”): River of Life (for men), located at 575 S. 13th

Street in Boise, and City Light (for women and children), located at 1404 W. Jefferson Street in

Boise.

56. In total, Sanctuary has 164 spots for persons experiencing homelessness: 60 beds

are set aside for families, 75 for men, and 22 for women.

https://www.idahopress.com/news/local/a-look-inside-boise-s-emergency-shelters-and-how-

they/article_480a19a5-a1b6-5cb3-8f37-5c85ec4d9722.html

57. Sanctuary is routinely full throughout the year and therefore often turns away

individuals experiencing homelessness.

58. BRM has space for approximately 300 people experiencing homelessness. See

https://www.idahopress.com/news/local/a-look-inside-boise-s-emergency-shelters-and-how-

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they/article_480a19a5-a1b6-5cb3-8f37-5c85ec4d9722.html (indicating that, combined, BRM and Sanctuary have spots for approximately 450 homeless people).
59. Within the bounds of certain rules, it is BRM’s policy never to turn away individuals experiencing homelessness. Although it has a limited number of beds or alternative spaces that can be used to provide safe and constitutionally adequate housing, BRM does not report as full under the Department’s Shelter Protocol.
60. BRM has a policy to allow people experiencing homelessness to sleep on the floor if there are no beds available. Even when there is no available shelter space at BRM for individuals to sleep on beds, BRM will not contact the BPD to report that it is full.
61. The BPD will enforce the Ordinances on nights when individuals cannot obtain beds at BRM, including on nights where there may not be safe and constitutionally adequate sleeping alternatives available within the shelter. See, e.g., Lareau v. Manson, 651 F.2d 96, 107 (2d Cir. 1981) (forcing individuals to sleep on mattresses on floor “do[es] not provide minimum decent housing” necessary to “pass constitutional muster”).
62. BRM is a corporation “for the worship of God, the teaching and preaching of the Word of God, the winning of people to a personal faith in the Lord Jesus Christ and in the spiritual improvement of mankind.”
63. BRM welcomes visitors with the notification that its “first object is to introduce everyone to our Lord and Savior Jesus Christ” and it offers chapel services, pre-meal prayers and morning devotions at its facilities.
64. Both of BRM’s shelter facilities offer shelter in connection with two distinct programs: (1) The Discipleship Program, and (2) The Emergency Services Program. The Discipleship Program is an “intensive, Christ-based residential recovery program for people with
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chemical dependency or alcoholism” and “is only open to those who are or desire to be of the same faith as the Rescue Mission.”
65. The Emergency Services Program provides a “place of overnight repose and safety for persons whose only alternative is to sleep on the streets . . . or other unsafe places.”
66. BRM’s religious mission extends to its homeless shelter activities. On its shelter intake form it informs the homeless that “the Good News is that Jesus saves us from sin past, present, and future” and that it “would like to share the Good News with” the homeless before asking whether they have “heard of Jesus?” The form also provides that the homeless will be “expelled from the emergency shelter” if they answer falsely.
67. BRM offers daily “voluntary spiritual guidance, Christian counseling, and Christian religious services” to participants in the Emergency Services Program. Even for emergency services program participants, BRM’s rules specify that “religious services are encouraged.”
68. Attendance at religious services is required to utilize the Discipleship Program. 69. Some members of Boise’s homeless population, including some Plaintiffs, do not wish to stay in BRM’s pervasively religious environment. 70. BRM’s shelters have strict rules limiting the homeless population’s ability to effectively seek emergency shelter therein. At River of Life, men experiencing homelessness are only permitted to stay for 17 consecutive days before being barred from the shelter for a period of 30 days. At City Light, women and children experiencing homelessness are permitted to stay for 30 consecutive days before facing the same choice. 71. Individuals experiencing homelessness seeking to stay at the BRM shelters must also comply with many rules or else will be banned or locked out on any given night. For instance,
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Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 18 of 25
homeless individuals may not stay at the BRM shelters sporadically. Instead, they must return to the shelter every night if they wish to continue to stay there.
72. The individual must check in each night between 4 and 5:30pm. Individuals who check-in after 5:30 may be denied shelter based on the reason for their late arrival and those arriving after 8:00pm are generally denied. This means that individuals experiencing homelessness who are regularly working off-hour shifts, or who are working on-call or day labor jobs may never be able to obtain shelter.
73. BRM guests also generally may not receive telephone calls, mail, or visitors. They may not sleep in their own clothes.
74. Once an individual checks into a BRM facility, they may not leave the shelter until the following morning.
75. Shelter spaces in Boise are frequently unavailable to certain subsets of the homeless population. BRM’s River of Life dedicates a certain number of beds to at-risk veterans, a certain number of beds to the shelter’s employment and year-long religious-based alcohol and substance abuse programs, and a certain number of beds to the shelter’s transitional housing programs.
76. Sanctuary on a daily basis operates at capacity in the men’s and women’s dorms and has to use mats on the floor for persons to sleep. Sanctuary has to turn away up to fifteen (15) persons a night.
77. There are other shelters in Boise, but they do not accommodate the general homeless population. The Women’s and Children’s Alliance provides emergency beds only for female victims of domestic violence and their children. The Idaho Youth Ranch provides emergency beds only for children who are part of the juvenile justice or child protection system.
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Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 19 of 25
78. The shelters also have various other restrictions that prevent certain individuals experiencing homelessness from staying in them. The BRM shelters do not allow couples to stay together. BRM’s City Light has an age cut-off for male children over twelve (12) years old so those children cannot stay with their mothers. BRM’s River of Life does not allow men with children.
79. Finally, some individuals who are eligible for assistance to secure permanent housing have to wait for long periods of time for such assistance or housing to become available, or cannot receive such assistance at all. Due to the large demand for rental assistance in the community and a limited amount of funding and federal budget cuts, the Boise City/Ada County Section 8 housing assistance waiting list is closed and is no longer accepting new applicants. The housing authority “do[es] not know when it will open again.” https://bcacha.org/programs/subsidized-housing/housing-choice-voucher-sect-8/
80. Because of the lack of shelter space and the inability to obtain permanent housing, a large number of individuals who are experiencing homeless in Boise will continue to do so for the foreseeable future. Because of the various restrictions on shelter beds, even if a bed is technically open on a given night, it may not be practically available to a given individual experiencing homelessness.
E. Pattern of Enforcement 81. At all relevant times, Defendants and their agents acted under color of state law and within the scope of their employment. 82. The City of Boise, through its Police Department, and the Chief of Police maintain a policy, custom, and practice of enforcing the Disorderly Conduct and Camping Ordinances against homeless individuals in circumstances that violate the Eighth Amendment.
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Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 20 of 25
83. The Ombudsman’s Report credited the “consistent effort and pressure” by the Boise Police Department for the elimination of permanent homeless camps: “Through solid effort and real pressure by the Boise Police Department, no established camps exist today along the Greenbelt. . . . At present, it might be possible to find one or two people in the parks at night; but there will be no established camps.” Ombudsman’s Report at 18-19.
84. Defendants have historically issued citations for sleeping or camping in public most between the months of April and September.
85. Defendants have given most citations between the hours of 5:30 and 8:30 a.m. when individuals experiencing homelessness who have slept outside the night before wake up and prepare to leave the area. Boise police officers make a point of checking for individuals experiencing homelessness first thing in the morning and have even opted to start shifts early in order to look for and cite those individuals for violating the camping and disorderly conduct ordinances. Boise police officers target outdoor areas where individuals experiencing homelessness sleep.
86. Plaintiffs have each received citations and/or convictions, or threats of citations, for violations of the Disorderly Conduct and Camping Ordinances for sleeping or lying down in public.
87. On information and belief, Boise police officers, with knowledge that Plaintiffs were experiencing homelessness and had no lawful place to sleep or rest within the City of Boise because of a chronic shortage of shelter beds, have issued citations, arrested, and/or threatened Plaintiffs in an effort to drive them and other individuals experiencing homelessness out of the City of Boise.
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Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 21 of 25
88. Plaintiffs often had to move constantly all night long, or sleep outside of the Boise city limits to avoid further harassment or citations from police officers.
89. On information and belief, Interim Chief of Police Masterson and his predecessor are aware that officers in the Boise Police Department unlawfully targeted Boise’s homeless population; cited, arrested, or threatened to cite or arrest Plaintiffs and other individuals experiencing homelessness for sleeping in public; and either directed or condoned the behavior of his officers.
90. The City’s Ombudsman’s Report and other material have documented the City’s policy, custom, and practice of criminalizing homelessness and publicized the dramatic increase in camping citations and the “success” of their enforcement efforts.
91. Local newspaper articles, the Ombudsman’s Report and Police Department publications have publicized the Boise Police Department’s practice of issuing camping citations to individuals experiencing homelessness who have no legal place to sleep or rest in Boise.
92. City policymakers and other relevant individuals in positions of authority were aware of this practice and, at a minimum, knowingly permitted these actions by Boise police officers.
93. Defendants have failed to exercise the proper supervision over Boise police officers’ interactions with individuals experiencing homelessness and failed to train these officers in how to appropriately and lawfully enforce the Disorderly Conduct and Camping Ordinances.
94. Defendants’ policies and practices have caused Plaintiffs to suffer—and unless enjoined, will continue to cause Plaintiffs to suffer—humiliation; psychological, physical, and emotional suffering; degradation, pain, and injury; financial loss; and loss of privacy and basic constitutional and human rights.
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FIRST CLAIM FOR RELIEF (Violation of the Eighth Amendment to the United States Constitution) 95. Plaintiffs hereby incorporate all preceding paragraphs as if fully set forth herein. 96. The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishment. U.S. Const. Amend. 8. 97. The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667-68 (1977). 98. Laws criminalizing an individual’s status, rather than specific conduct, are unconstitutional under the Cruel and Unusual Punishments Clause. Robinson v. California, 370 U.S. 660 (1962). 99. The Cruel and Unusual Punishments Clause prohibits “the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter.” Martin v. City of Boise, 920 F.3d 584, 615 (9th Cir. 2019). 100. Poverty, unemployment, untreated mental and physical illness, drug and alcohol dependence, and a lack of adequate shelter space often forces Plaintiffs and other individuals experiencing homelessness to sleep in public places in Boise. 101. There are substantially more persons experiencing homelessness in Boise than there are emergency shelter beds. 102. Although Plaintiffs are experiencing homelessness and frequently have no way to comply with Boise Municipal Code §§ 5-2-3(A) and 7-3A-2(A) and must sleep outdoors, Defendants have cited, arrested, or threatened Plaintiffs for sitting, lying, or sleeping in public places in Boise despite the unavailability of shelter. In addition, despite the language of the Ordinances, under the terms of the Shelter Protocol, Defendants continue to enforce Boise
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Municipal Code §§ 5-2-3(A) and 7-3A-2(A) in situations in which no shelter is available to a given individual experiencing homelessness, including because of stay limits, family status, gender, working conditions, and/or disability. In addition, Defendants continue to enforce Boise Municipal Code §§ 5-2-3(A) and 7-3A-2(A) in situations in which an individual’s only alternative is to stay in a pervasively religious atmosphere to which they object, or face arrest.
103. Defendants are punishing Plaintiffs and other homeless individuals based on their status as persons experiencing homelessness.
104. Plaintiffs Robert Martin and Pamela Hawkes were cited and/or arrested for sitting, lying, or sleeping in public places in Boise despite the unavailability of shelter.
105. Plaintiffs Robert Martin and Robert Anderson are at risk of being cited, arrested, or threatened for sitting, lying, or sleeping in public places in Boise despite the unavailability of shelter.
106. Defendants’ actions that penalize Plaintiffs for their homeless status constitute cruel and unusual punishment in violation of Plaintiffs’ well-established rights under the Eighth Amendment of the United States Constitution as incorporated in, and applied to the states through, the Fourteenth Amendment.
PRAYER FOR RELIEF WHEREFORE, based on the allegations asserted herein, Plaintiffs respectfully request relief as follows: 1. An injunction enjoining Defendants, their officers, employees, assignees, successors, and agents, from enforcing Boise Municipal Code §§ 5-2-3(A) and 7-3A-2(A) and any other law that would impose criminal penalties on homeless individuals for sitting, sleeping, or lying outside on public property while no shelter is available to them;
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Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 24 of 25

2. A declaration, pursuant to 28 U.S.C. § 2201, that enforcement of Boise Municipal Code §§ 5-2-3(A) and 7-3A-2(A) violates the Eighth Amendment of the United States Constitution when applied to homeless individuals for sitting, sleeping, or lying outside on public property while no shelter is available to them;
3. Award of damages according to proof under 42 U.S.C. § 1983; 4. All costs, attorneys’ fees, and expenses that Plaintiffs reasonably incur, see 42 U.S.C. § 1988; and 5. Such other and further relief as this Court deems just and proper.

Dated: March 10, 2020 THIRD AMENDED COMPLAINT

/s/ Michael E. Bern Howard A. Belodoff, ISB #2290 IDAHO LEGAL AID SERVICES, INC. 1447 South Tyrell Dr. Boise, ID 83706 Phone: (208) 87-2323 Fax: (208) 342-2561 Email: howardbelodoff@idaholegalaid.org
Eric Tars # 94857 (PA) National Law Center
on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Phone: (202) 638-2535 Fax: (202) 628-2737 Email: etars@nlchp.org
Allen M. Gardner, #456723 (DC) Michael E. Bern, #994791 (DC) Scott C. Jones, #986308 (DC) Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, DC 20004-1304 Phone: (202) 637-2200 Fax: (202) 637-2201 Email: Allen.Gardner@lw.com
24

Case 1:09-cv-00540-REB Document 338 Filed 03/10/20 Page 25 of 25 Email: Michael.Bern@lw.com Email: Scott.Jones@lw.com Attorney for Plaintiffs
25 THIRD AMENDED COMPLAINT

 
 Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 1 of 46
CONMAG,LCKS,PROTO,REOPEN,RFSETL
U.S. District Court District of Idaho (LIVE Database)Version 6.3 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:09−cv−00540−REB

Martin et al v. City of Boise, Idaho et al Assigned to: Judge Ronald E. Bush Referred to: Judge Larry M. Boyle (Settlement) Case in other court: Ninth Circuit Court of Appeals, 11−35674
Ninth Circuit Court of Appeals, 15−35845
Supreme Court of the United States, 18A1264 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/22/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Janet F. Bell TERMINATED: 08/23/2015

represented by Allen M Gardner Latham & Watkins LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 202−637−2200 Email: allen.gardner@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Eric S Tars National Law Center on Homelessness & Poverty 2000 M St. NW, Ste. 210 Washington, DC 20036 202−638−2535 x120 Email: etars@nlchp.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Howard A Belodoff Idaho Legal Aid Services, Inc P O Box 913 Boise, ID 83701 (208) 331−3378 Email: howardbelodoff@idaholegalaid.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy N Rosen National Law Center on Homelessness & Poverty 2000 M Street NW Suite 210 Washington, DC 20036 202−638−2535x104 Email: jrosen@nlchp.org TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Krysta C Copeland Latham & Watkins LLP 555 Eleventh Street NW Suite 1000

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 2 of 46
Washington, DC 20004 2026372199 Email: krysta.copeland@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca Valentine Latham & Watkins LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 202−637−2386 Email: rebecca.valentine@lw.com TERMINATED: 03/09/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott C Jones Latham & Watkins LLP 555 Eleventh St. NW, Suite 1000 Washington, DC 20004 (202) 637−2200 Email: scott.jones@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas Latham & Watkins LLP 555 Eleventh St. NW, Suite 1000 Washington D.C. 20004 202−637−2186 Email: allyson.maltas@lw.com TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad Latham & Watkins LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 202−637−2225 Email: aziz.ahmad@lw.com TERMINATED: 02/11/2015 PRO HAC VICE
Catherine A Bendor US DEPT OF JUSTICE Housing & Civil Enforcement Section G St 950 Pennsylvania Ave NW Washington, DC 20530 (202) 638−2535 Email: cbendor@nlchp.org TERMINATED: 05/07/2010 PRO HAC VICE
Daniel I Levy Latham & Watkins LLP 555 Eleventh Street NW, Suite 1000 Washington, DC 20004 202−637−2200 Email: daniel.levy@lw.com TERMINATED: 08/12/2015 PRO HAC VICE

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 3 of 46
Greer B Donley Latham & Watkins LLP 555 Eleventh St. NW, Suite 1000 Washington, DC 20004 (202) 637−2200 Email: greer.donley@lw.com TERMINATED: 07/27/2017 PRO HAC VICE
Heather Maria Johnson The National Law Center on Homelessness & Poverty 411 K St. NW, Suite 1400 Washington, DC 20004 202−638−2535 Email: hjohnson@nlchp.org TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED
Jared A Stark Latham & Watkins LLP 555 Eleventh Street NW Suite 1000 Washington, DC 20004 202−637−2134 Email: jared.stark@lw.com TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen E Cunningham The National Law Center on Homelessness & Poverty 1411 K Street, NW #1400 Washington, DC 20005 (202) 638−2535 X 221 Email: kcunningham@nlchp.org (Inactive) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M Cheng Latham & Watkins LLP 555 Eleventh St. NW, Ste. 1000 Washington, DC 20004 202−637−2000 Email: katherine.cheng@lw.com TERMINATED: 12/30/2016 PRO HAC VICE
Kirsten M Scheffler Latham & Watkins, LLP 555 11th St., NW #1000 Washington, DC 20004 (202) 637−2143 TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley Latham & Watkins 555 11th St NW #1000 Washington, DC 20004 (202) 637−1039 TERMINATED: 11/15/2010

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 4 of 46

Plaintiff
Brian S. Carson TERMINATED: 07/31/2014

Marguerite Sullivan Latham & Watkins 555 11th St, NW #1000 Washington, DC 20004 (202) 637−1027 Email: marguerite.sullivan@lw.com TERMINATED: 08/12/2015 PRO HAC VICE
Tulin Ozdeger The National Law Center on Homelessness & Poverty 1411 K Street NW #1400 Washington, DC 20005 (202) 638−2535 Email: tozdeger@nlchp.org (Inactive) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Catherine A Bendor (See above for address) TERMINATED: 05/07/2010 PRO HAC VICE
Heather Maria Johnson (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 5 of 46

Plaintiff
Craig Fox TERMINATED: 12/01/2010

Jared A Stark (See above for address) TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen E Cunningham (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Kirsten M Scheffler (See above for address) TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Tulin Ozdeger (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) TERMINATED: 09/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Catherine A Bendor (See above for address) TERMINATED: 05/07/2010 PRO HAC VICE
Heather Maria Johnson (See above for address)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 6 of 46

Plaintiff Robert Martin

TERMINATED: 09/03/2010 ATTORNEY TO BE NOTICED
Karen E Cunningham (See above for address) TERMINATED: 09/03/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
Kirsten M Scheffler (See above for address) TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Tulin Ozdeger (See above for address) TERMINATED: 09/03/2010 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allen M Gardner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 7 of 46
ATTORNEY TO BE NOTICED
Michael E Bern Latham & Watkins LLP 555 Eleventh Street NW Suite 1000 Washington, DC 20004 202−637−2200 Email: michael.bern@lw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott C Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Catherine A Bendor (See above for address) TERMINATED: 05/07/2010 PRO HAC VICE
Daniel I Levy (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Greer B Donley (See above for address) TERMINATED: 07/27/2017 PRO HAC VICE
Heather Maria Johnson (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED
Jared A Stark (See above for address) TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen E Cunningham (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M Cheng (See above for address) TERMINATED: 12/30/2016 PRO HAC VICE

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 8 of 46

Plaintiff
Lawerence Lee Smith TERMINATED: 08/23/2015

Kirsten M Scheffler (See above for address) TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Tulin Ozdeger (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allen M Gardner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott C Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 9 of 46
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Catherine A Bendor (See above for address) TERMINATED: 05/07/2010 PRO HAC VICE
Daniel I Levy (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Greer B Donley (See above for address) TERMINATED: 07/27/2017 PRO HAC VICE
Heather Maria Johnson (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED
Jared A Stark (See above for address) TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen E Cunningham (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M Cheng (See above for address) TERMINATED: 12/30/2016 PRO HAC VICE
Kirsten M Scheffler (See above for address) TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 10 of 46

Plaintiff Robert Anderson

ATTORNEY TO BE NOTICED
Tulin Ozdeger (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allen M Gardner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael E Bern (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott C Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Catherine A Bendor (See above for address) TERMINATED: 05/07/2010

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 11 of 46

Plaintiff Pamela Hawkes

PRO HAC VICE
Daniel I Levy (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Greer B Donley (See above for address) TERMINATED: 07/27/2017 PRO HAC VICE
Heather Maria Johnson (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED
Jared A Stark (See above for address) TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen E Cunningham (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M Cheng (See above for address) TERMINATED: 12/30/2016 PRO HAC VICE
Kirsten M Scheffler (See above for address) TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Tulin Ozdeger (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Allen M Gardner (See above for address) LEAD ATTORNEY

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 12 of 46
PRO HAC VICE ATTORNEY TO BE NOTICED
Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott C Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Catherine A Bendor (See above for address) TERMINATED: 05/07/2010 PRO HAC VICE
Daniel I Levy (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Greer B Donley (See above for address) TERMINATED: 07/27/2017 PRO HAC VICE
Heather Maria Johnson (See above for address) TERMINATED: 08/02/2013 ATTORNEY TO BE NOTICED
Jared A Stark (See above for address)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 13 of 46

Plaintiff
Jonathan Leigh Milller TERMINATED: 12/01/2010

TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Karen E Cunningham (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M Cheng (See above for address) TERMINATED: 12/30/2016 PRO HAC VICE
Kirsten M Scheffler (See above for address) TERMINATED: 09/29/2010 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Tulin Ozdeger (See above for address) TERMINATED: 05/06/2013 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) TERMINATED: 09/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 14 of 46

Plaintiff Kirk Ross TERMINATED: 12/01/2010
Plaintiff Basil E. Humphrey TERMINATED: 08/23/2015

PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
represented by Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) TERMINATED: 09/03/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
represented by Allen M Gardner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 15 of 46

Plaintiff
James M. Godfrey TERMINATED: 07/31/2014

ATTORNEY TO BE NOTICED
Scott C Jones (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Daniel I Levy (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Greer B Donley (See above for address) TERMINATED: 07/27/2017 PRO HAC VICE
Jared A Stark (See above for address) TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M Cheng (See above for address) TERMINATED: 12/30/2016 PRO HAC VICE
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Eric S Tars (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Howard A Belodoff (See above for address) LEAD ATTORNEY

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 16 of 46
ATTORNEY TO BE NOTICED
Jeremy N Rosen (See above for address) TERMINATED: 01/28/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Krysta C Copeland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Allyson M Maltas (See above for address) TERMINATED: 06/02/2011 PRO HAC VICE
Aziz Ahmad (See above for address) TERMINATED: 02/11/2015 PRO HAC VICE
Jared A Stark (See above for address) TERMINATED: 08/29/2014 PRO HAC VICE ATTORNEY TO BE NOTICED
Kristi N O'Malley (See above for address) TERMINATED: 11/15/2010
Marguerite Sullivan (See above for address) TERMINATED: 08/12/2015 PRO HAC VICE
Rebecca Valentine (See above for address) TERMINATED: 03/09/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant City of Boise, Idaho

represented by Brady James Hall Moore Elia Kraft & Hall, LLP PO Box 6756 Boise, ID 83702 208−336−6900 Email: brady@melawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jayme Beaber Sullivan City of Boise, Office of City Attorney 150 N. Capitol Blvd. P.O. Box 500 Boise, ID 83701−0500 208−608−7950

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 17 of 46

Defendant
Boise Police Department TERMINATED: 08/23/2015

Email: BoiseCityAttorney@cityofboise.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Moore MOORE ELIA KRAFT & HALL, LLP PO Box 6756 Boise, ID 83707 (208) 336−6900 Fax: (208) 336−3071 Email: mike@melawfirm.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott B Muir Boise City Attorney's Office 150 N. Capitol Blvd. P.O. Box 500 Boise, ID 83701−0500 (208) 384−3870 Fax: (208) 384−4454 Email: BoiseCityAttorney@cityofboise.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelley K. Fleming City of Boise POB 500 Boise, ID 83701 208−384−3870 Email: BoiseCityAttorney@cityofboise.org ATTORNEY TO BE NOTICED
Valencia J Bilyeu Boise City Attorney's Office 500 W. Capitol Blvd. P.O. Box 500 Boise, ID 83702 (208) 384−3870 Fax: (208) 384−4454 Email: BoiseCityAttorney@cityofboise.org TERMINATED: 09/01/2011
represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott B Muir (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelley K. Fleming (See above for address) ATTORNEY TO BE NOTICED
Valencia J Bilyeu

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 18 of 46

Defendant
Michael Masterson in his official capacity as Interim Chief of Police of the Boise Police Department

(See above for address) TERMINATED: 09/01/2011
represented by Brady James Hall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael W Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott B Muir (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelley K. Fleming (See above for address) ATTORNEY TO BE NOTICED
Valencia J Bilyeu (See above for address) TERMINATED: 09/01/2011 ATTORNEY TO BE NOTICED

Date Filed 10/22/2009 10/23/2009 11/02/2009 11/06/2009 11/06/2009 11/06/2009 11/06/2009 11/06/2009

# Docket Text
1 COMPLAINT against City of Boise, Idaho, Boise Police Department, Michael Masterson ( Filing fee $ 350 receipt number 0976−532029.), filed by Janet F. Bell, Ronald Anderson, Brian S. Carson, Robert Martin, Lawerence Lee Smith, Pamela Hawkes, Craig Fox. (Attachments: # 1 Summons, # 2 Cover Sheet)(Belodoff, Howard)
2 Summons Issued as to Boise Police Department, City of Boise, Idaho, Michael Masterson. (Print attached Summons for service.) (jm)
3 SUMMONS Returned Executed by Robert Anderson, Brian S. Carson, Robert Martin, Lawerence Lee Smith, Janet F. Bell, Pamela Hawkes, Craig Fox. Boise Police Department served on 10/30/2009, answer due 11/19/2009; City of Boise, Idaho served on 10/30/2009, answer due 11/19/2009. (Belodoff, Howard)
4 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Tulin Ozdeger. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 11/30/2009 (Belodoff, Howard)
5 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Catherine Bendor. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 11/30/2009 (Belodoff, Howard)
6 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Marguerite M Sullivan. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 11/30/2009 (Belodoff, Howard)
7 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Kristi N O'Malley. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 11/30/2009 (Belodoff, Howard)
8 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Heather Maria Johnson. Howard A Belodoff appearing for Plaintiffs Robert

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 19 of 46

11/06/2009 11/16/2009 11/19/2009 11/20/2009
11/20/2009 11/20/2009
11/30/2009 12/01/2009 12/01/2009 12/01/2009
12/01/2009 12/04/2009 12/09/2009

Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 11/30/2009 (Belodoff, Howard)
9 MOTION to Waive Pro Hac Vice Fees Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 11/30/2009 (Attachments: # 1 Affidavit Howard Belodoff in Support of Motion to Waive Fees)(Belodoff, Howard)
10 SUMMONS Returned Executed by Robert Anderson, Brian S. Carson, Robert Martin, Lawerence Lee Smith, Janet F. Bell, Pamela Hawkes, Craig Fox. Michael Masterson served on 11/6/2009, answer due 11/27/2009. (Belodoff, Howard)
11 Defendants' ANSWER to 1 Complaint, by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Muir, Scott)
12 DOCKET ENTRY ORDER − Finding good cause therefore, NOW THEREFORE IT IS HEREBY ORDERED THAT the Motions for Admission pro hac vice 4 5 6 7 and 8 are GRANTED. IT IS FURTHER ORDERED THAT the Motion to Waive pro hac vice fees for Latham & Watkins and the NLCHP 9 is DENIED. Signed by Judge B. Lynn Winmill. (sbh)
13 NOTICE of Hearing: Telephonic Scheduling Conference set for 12/17/2009 04:00 PM before Judge B. Lynn Winmill. (Attachments: # 1 Litigation Plan Letter, # 2 Litigation Plan)(jlg)
14 NOTICE of Availability of Magistrate Judge and Requirement for Consent sent to counsel for Robert Anderson, Janet F. Bell, Boise Police Department, Brian S. Carson, City of Boise, Idaho, Craig Fox, Pamela Hawkes, Robert Martin, Michael Masterson, Lawerence Lee Smith re 11 Answer to Complaint, 1 Complaint, Consent/Objection to Magistrate due by 1/22/2010. (jm)
15 CONSENT filed. (jm)
16 ALL PARTIES HAVE CONSENTED TO PROCEED BEFORE A US MAGISTRATE JUDGE(jm)
DOCKET ENTRY NOTICE of Case Number Change, Case reassigned to Judge Ronald E Bush for all further proceedings. Judge B. Lynn Winmill no longer assigned to case. Please use this case number on all future pleadings, CIV 09−540−S−REB (jm)
17 DOCKET TEXT AMENDED NOTICE of Hearing: The Court will maintain the TSC previously set for this date and time. However, Plaintiff's counsel shall now initiate the Conference Call to Judge Bush's Chambers at (208) 334−1495. Counsel shall prepare the attached Litigation Plan which is due no later than DECEMBER 14, 2009. The Telephonic Scheduling Conference set for 12/17/2009 04:00 PM (MTN. TIME) in Boise, ID before Judge Ronald E Bush. Should you need assistance, please call Lynette Case, Deputy Clerk for Judge Bush, at (208) 334−9023.(lc)
18 MOTION for Reconsideration re 12 Order, Denial Of Motion for Waiver of Pro Hac Vice Fees Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 12/28/2009 (Belodoff, Howard)
19 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. (Belodoff, Howard)
20 DOCKET ENTRY ORDER granting 18 Motion for Reconsideration (Docket No. 18). Pending before the Court is Plaintiffs' Motion for Reconsideration of Denial of Motion for Waiver of Pro Hac Vice Fees (Docket No. 18). The Motion for Reconsideration clarifies that Plaintiffs' counsel are acting in a pro bono capacity. Accordingly, IT IS HEREBY ORDERED that Plaintiffs' Motion (Docket No. 18) is GRANTED. All pro bono counsel whose pro hac vice applications have been approved shall be entitled to have the pro hac vice fee waived. This includes: Tulin Ozdeger, Catherine Bendor, Marguerite Sullivan, Kristi O'Malley, and Heather Maria Johnson. The Order at Docket No. 12 is VACATED to the extent it is inconsistent with this order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 20 of 46

12/17/2009 12/21/2009 12/22/2009
12/22/2009 01/04/2010 01/12/2010 02/09/2010 02/18/2010 02/18/2010 03/22/2010
03/31/2010 03/31/2010 03/31/2010

21 DOCKET TEXT AMENDED NOTICE of Hearing: Telephonic Scheduling Conference set for 12/21/2009 02:00 PM (MTN. TIME) in Pocatello, ID before Judge Ronald E Bush. The Clerk shall initiate the Call to all parties on Monday.(lc)
22 Minute Entry for proceedings held before Judge Ronald E Bush: Scheduling Conference held on 12/21/2009, (5−day Jury Trial set for 1/10/2011 09:00 AM in Boise, ID before Judge Ronald E Bush.). (Court Reporter/ESR Vicki Jones.) (lc) (Entered: 12/22/2009)
23 CASE MANAGEMENT ORDER Scheduling conference held 12/21/09. ( Amended Pleadings due by 4/30/2010, Discovery due by 8/31/2010, Joinder of Parties due by 4/30/2010., Dispositive Motions due by 9/30/2010, Jury Trial set for 1/10/2011 09:00 AM in Boise, ID before Judge Ronald E Bush.) This matter is referred to Magistrate Judge Larry M. Boyle for the purpose of conducting both a voluntary case management conference and the settlement conference. Thevoluntary case management conference shall be held by 3/31/10 and the settlementconference by 5/31/10. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm) (Entered: 12/23/2009)
Set Deadlines/Hearings: Judicially Supervised Settlement Conference shall be held by 5/31/2010. (jm) (Entered: 12/23/2009)
24 VOLUNTARY CASE MANAGEMENT CONFERENCE SCHEDULING ORDER (VCMC Hearing set for 2/5/2010 01:00 PM in Boise, ID before Judge Larry M. Boyle.). Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)
25 DOCKET TEXT ORDER − Pursuant to discussion with counsel, the Voluntary Case Management Conference set for 2/5/2010 is hereby VACATED. Counsel will contact Judge Boyle's law clerk at 334−9010 on or before February 10, 2010 to reschedule conference date. Signed by Judge Larry M. Boyle. (md)
26 DOCKET ENTRY ORDER re 25 Order, Counsel shall have until February 17, 2010, to contact Judge Boyle's law clerk, Merritt Dublin, to reschedule the Voluntary Case Management Conference date. Signed by Judge Larry M. Boyle. (bk)
27 VOLUNTARY CASE MANAGEMENT CONFERENCE SCHEDULING ORDER (VCMC Hearing set for 3/22/2010 01:30 PM in Boise, ID before Judge Larry M Boyle). Signed by Judge Larry M.Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm) Modified on 2/19/2010 to correct the entry to reflect the correct Judge (jm).
Set Deadlines/Hearings: VCMC Hearing set for 3/22/2010 01:30 PM in Boise, ID before Judge Larry M. Boyle. (jm) (Entered: 02/19/2010)
28 DOCKET TEXT Minute Entry for proceedings held before Judge Larry M. Boyle: VCMC Conference held on 3/22/2010. Appearances by Howard Belodoff and Heather Johnson(appearing by telephone as well as Karen Cunningham by telephone) as counsel for Plaintiff, Scott Muir and Valencia Bilyeu as counsel for defense. The Court and counsel discussed how best to proceed with this case. (Court Reporter/ESR not recorded.) (so) (Entered: 03/23/2010)
29 MOTION to Waive Pro Hac Vice Fees Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 4/26/2010 (Belodoff, Howard)
30 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Karen E Cunningham. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 4/26/2010 (Belodoff, Howard)
31 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Kirstin M Scheffler. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 4/26/2010 (Belodoff, Howard)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 21 of 46

04/02/2010
04/05/2010 04/30/2010 04/30/2010 04/30/2010 04/30/2010 05/03/2010 05/07/2010 05/07/2010
05/07/2010 05/13/2010 05/13/2010
05/17/2010

32 DOCKET ENTRY ORDER− Finding good cause therefore, IT IS HEREBY ORDERED that the Motions for Admission pro hac vice (Docket Nos. 30 and 31 ) and the Motion to Waive pro hac vice fees (Docket No. 29 ) are GRANTED. Per General Order 206, out−of−state counsel shall immediately register for ECF. Signed by Judge Ronald E Bush.(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
33 DOCKET ENTRY ORDER Re Correspondence with Court: Communication with the Court is governed by Local Rule 77.4. Correspondence, email, and telephone calls for the purpose of notifying the Court of something are permissible; however, such communication should not be used as a substitute for seeking relief on a matter more properly brought as a motion. Signed by Judge Ronald E Bush. (kp)
34 MOTION to Withdraw as Attorney Catherine Bendor Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 5/24/2010 (Belodoff, Howard)
35 MOTION for Extension of Time to File Join Parties Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 5/24/2010 (Belodoff, Howard)
36 AFFIDAVIT in Support by Heather Johnson re 35 MOTION for Extension of Time to File Join Parties filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. (Attachments: # 1 Exhibit)(Belodoff, Howard)
37 MEMORANDUM in Support re 35 MOTION for Extension of Time to File Join Parties filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith.(Belodoff, Howard)
NOTICE TO COURT that counsel Catherine Bendor wishes to no longer be noticed electronically on this case as of the date of this notice. (jm) (as per atty Ozdeger by telephone)
38 DOCKET ENTRY ORDER shortening time for Defendants to respond to Plaintiffs' Motion for Extension of Time to Join Parties (Docket No. 35). Defendants must file an opposition, if any, on or before May 17, 2010. Plaintiffs may then file a reply, if any, on or before May 21, 2010. Signed by Judge Ronald E Bush. (kp)
39 DOCKET ENTRY ORDER granting unopposed 34 Motion to Withdraw Counsel. Attorney Catherine Bendor will soon be leaving her position with the National Law Center on Homelessness and Poverty. Plaintiffs have two other attorneys from the National Law Center on Homelessness and Poverty and have a total of seven attorneys of record representing each of their interests. Accordingly, the unopposed Motion to Withdraw Counsel (Docket No. 34) is granted. Attorney Catherine A Bendor terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
Set/Reset Deadlines as to 35 MOTION for Extension of Time to File Join Parties. Responses due by 5/17/2010 Replies due by 5/21/2010. (jm) (Entered: 05/10/2010)
40 NOTICE of Appearance by Valencia J Bilyeu on behalf of Boise Police Department, City of Boise, Idaho, Michael Masterson (Bilyeu, Valencia)
41 MOTION to Compel or in the Alternative to Dismiss Plaintiffs Fox and Carson Valencia J Bilyeu appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 6/7/2010 (Attachments: # 1 Affidavit of Valencia Bilyeu, # 2 Exhibit 1 to Affidavit, # 3 Exhibit 2 to Affidavit, # 4 Exhibit 3 to Affidavit, # 5 Exhibit 4 to Affidavit, # 6 Exhibit 5 to Affidavit, # 7 Exhibit 6 to Affidavit, # 8 Exhibit 7 to Affidavit, # 9 Exhibit 8 to Affidavit, # 10 Exhibit 9 to Affidavit, # 11 Exhibit 10 to Affidavit, # 12 Memorandum in Support)(Bilyeu, Valencia) Modified on 5/14/2010 to add second part of motion into docket text(cjm).
42 RESPONSE to Motion re 35 MOTION for Extension of Time to File Join Parties filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 6/4/2010. (Attachments: # 1 Affidavit Scott Muir)(Muir, Scott)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 22 of 46

05/21/2010 05/21/2010 06/04/2010 06/07/2010 06/07/2010 06/23/2010
06/24/2010 06/25/2010 06/25/2010
06/25/2010 06/25/2010 06/28/2010
06/28/2010

43 AFFIDAVIT in Support by Howard Belodoff re 35 MOTION for Extension of Time to File Join Parties filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith.(Belodoff, Howard)
44 REPLY to Response to Motion re 35 MOTION for Extension of Time to File Join Parties filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith.(Belodoff, Howard)
45 ORDER GRANTING MOTION FOR EXTENSION OF TIME TO JOIN PARTIES, granting 35 Motion for Extension of Time to File. The deadline to join parties is hereby extended to 6/28/2010. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
46 MOTION to Withdraw 41 MOTION to Compel Unopposed Motion to Withdraw Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 7/1/2010 (Belodoff, Howard)
47 RESPONSE to Motion re 41 MOTION to Compel, 46 MOTION to Withdraw 41 MOTION to Compel Unopposed Motion to Withdraw filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Replies due by 6/24/2010. (Attachments: # 1 Affidavit)(Belodoff, Howard)
48 Expedited MOTION to Compel Kristi N O'Malley appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 7/19/2010 (Attachments: # 1 Memorandum in Support, # 2 Affidavit of Heather M. Johnson, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L)(O'Malley, Kristi)
49 REPLY to Response to Motion re 41 MOTION to Compel or in the Alternative to Dismiss filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Attachments: # 1 Affidavit of Valencia Bilyeu, # 2 Exhibit #10 to Affidavit, # 3 Exhibit #11 to Affidavit)(Bilyeu, Valencia)
50 Consent MOTION for Protective Order Regarding Confidential Information Kristi N O'Malley appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 7/19/2010 (Attachments: # 1 Proposed Protective Order)(O'Malley, Kristi)
51 DOCKET ENTRY ORDER setting expedited briefing schedule on Plaintiffs' Motion to Compel (Docket No. 48), filed June 23, 2010. Given what appears to be a discrete dispute and considering the discovery deadline set forth in the Case Management Order (Docket No. 23), the Court finds expedited treatment appropriate. Accordingly, Defendants' response to the Motion to Compel is due on or before July 7, 2010, and Plaintiffs' reply, if any, is due on or before July 9, 2010. If the parties feel that they need more time to provide the Court with the information necessary to make a fully−informed decision, then they should indicate so in their briefing. Signed by Judge Ronald E Bush. (kp)
52 MOTION for Entry of Addendum to Protective Order Kristi N O'Malley appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, Pamela Hawkes, Robert Martin, Lawerence Lee Smith. Responses due by 7/19/2010 (Attachments: # 1 Affidavit of Heather M. Johnson, # 2 Exhibit 1, # 3 Exhibit 2)(O'Malley, Kristi)
Reset Deadlines as to 48 Expedited MOTION to Compel. Responses due by 7/7/2010 Replies due by 7/9/2010. (jm) (Entered: 06/28/2010)
CORRECTIVE ENTRY − The entry document number 50 Consent MOTION for Protective Order Regarding Confidential Information filed by Plaintiffs in regards to the proposed order, was filed incorrectly in this case. Pursuant to the ECF Procedures, section 12B, all proposed orders are to be submitted by email to the appropriate Judges proposed order email box only and not as attachments. The filing party shall re−submit their proposed order.(jm)
53 AMENDED COMPLAINT against Boise Police Department, City of Boise, Idaho, Michael Masterson, filed by Robert Anderson, Brian S. Carson, Robert Martin,

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 23 of 46

07/01/2010
07/07/2010 07/08/2010 07/09/2010 07/09/2010 07/14/2010
07/16/2010 07/19/2010 08/02/2010 08/03/2010 08/04/2010

Lawerence Lee Smith, Janet F. Bell, Pamela Hawkes, Craig Fox, Jonathan Leigh Milller, Kirk Ross, Basil E. Humphrey, James M. Godfrey.(O'Malley, Kristi)
54 MOTION for Leave to File Sur−reply in Opposition to Defendant's Motion to Compel Kristi N O'Malley appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 7/26/2010 (Attachments: # 1 Proposed Sur−reply, # 2 Affidavit of Howard A. Belodoff)(O'Malley, Kristi)
55 RESPONSE to Motion re 48 Expedited MOTION to Compel filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 7/26/2010. (Attachments: # 1 Affidavit Caroline Tangen, # 2 Affidavit Debbie G. Allen, # 3 Affidavit Scott B. Muir)(Muir, Scott)
56 SUPPLEMENT by Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson re 55 Response to Motion,. (Bilyeu, Valencia) Modified on 7/9/2010 to reflect lodged CD placed on shelf in the Clerk's office (cjm).
57 Defendants' ANSWER to 53 Amended Complaint, by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Bilyeu, Valencia)
58 REPLY to Response to Motion re 48 Expedited MOTION to Compel filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Kirk Ross, Lawerence Lee Smith.(Belodoff, Howard)
59 DOCKET TEXT NOTICE of Hearing on Motion 41 MOTION to Compel, 50 Consent MOTION for Protective Order Regarding Confidential Information, 46 MOTION to Withdraw 41 MOTION to Compel Unopposed Motion to Withdraw, 48 Expedited MOTION to Compel, 52 MOTION for Entry of Addendum to Protective Order, 54 MOTION for Leave to File Sur−reply in Opposition to Defendant's Motion to Compel : Motion Hearing is set for 8/4/2010 09:30 AM (Mountain Time)in Boise, ID before Judge Ronald E Bush, 5th Floor, Courtroom #7. Local Counsel shall be present for all hearings in this matter.(lc)
60 RESPONSE to Motion re 54 MOTION for Leave to File Sur−reply in Opposition to Defendant's Motion to Compel filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 8/2/2010.(Muir, Scott)
61 RESPONSE to Motion re 52 MOTION for Entry of Addendum to Protective Order filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 8/5/2010.(Bilyeu, Valencia)
62 REPLY to Response to Motion re 54 MOTION for Leave to File Sur−reply in Opposition to Defendant's Motion to Compel filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith.(Belodoff, Howard)
63 REPLY to Response to Motion re 52 MOTION for Entry of Addendum to Protective Order filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith.(Belodoff, Howard)
64 Minute Entry for proceedings held before Judge Ronald E Bush: Motion Hearing held on 8/4/2010 re 48 Expedited MOTION to Compel filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Brian S. Carson, Janet F. Bell, Craig Fox, 54 MOTION for Leave to File Sur−reply in Opposition to Defendant's Motion to Compel filed by Robert Martin, James M. Godfrey, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey, Lawerence Lee Smith, Robert Anderson, Kirk Ross, Brian S. Carson, Jonathan Leigh Milller, Craig Fox, 52 MOTION for Entry of Addendum to Protective Order filed by Robert Martin, Pamela Hawkes, Janet F. Bell, Lawerence Lee Smith, Robert Anderson, Brian S. Carson, Craig Fox, 41 MOTION to Compel filed by Boise Police Department, City of Boise, Idaho, Michael Masterson, 46 MOTION to Withdraw 41 MOTION to Compel Unopposed Motion to Withdraw filed by Robert Martin, Pamela Hawkes, Janet F. Bell, Lawerence Lee Smith, Robert

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 24 of 46

08/09/2010 08/31/2010 08/31/2010 08/31/2010 09/03/2010
09/03/2010 09/03/2010 09/03/2010

Anderson, Brian S. Carson, Craig Fox, Motions terminated: 46 MOTION to Withdraw 41 MOTION to Compel Unopposed Motion to Withdraw filed by Robert Martin, Pamela Hawkes, Janet F. Bell, Lawerence Lee Smith, Robert Anderson, Brian S. Carson, Craig Fox, 52 MOTION for Entry of Addendum to Protective Order filed by Robert Martin, Pamela Hawkes, Janet F. Bell, Lawerence Lee Smith, Robert Anderson, Brian S. Carson, Craig Fox, 54 MOTION for Leave to File Sur−reply in Opposition to Defendant's Motion to Compel filed by Robert Martin, James M. Godfrey, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey, Lawerence Lee Smith, Robert Anderson, Kirk Ross, Jonathan Leigh Milller, Brian S. Carson, Craig Fox, 48 Expedited MOTION to Compel filed by Robert Martin, Pamela Hawkes, Janet F. Bell, Lawerence Lee Smith, Robert Anderson, Brian S. Carson, Craig Fox, 41 MOTION to Compel filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Motions either Granted or Granted in part. (Court Reporter/ESR Trinidad Diaz.) (lc)THESE MINUTES SHALL STAND AS THE ORDER OF THE COURT (Entered: 08/05/2010)
65 SEALED RESPONSE to Motion re 48 Expedited MOTION to Compel Additional Briefing filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 8/26/2010. (Attachments: # 1 Sealed, # 2 Sealed, # 3 Sealed, # 4 Sealed, # 5 Sealed, # 6 Sealed, # 7 Sealed)(Bilyeu, Valencia)
66 Consent MOTION to Withdraw as Attorney for Jonathan Leigh Miller Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 9/24/2010 (Belodoff, Howard)
67 Consent MOTION to Withdraw as Attorney for Kirk Ross Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 9/24/2010 (Belodoff, Howard)
68 Consent MOTION for Extension of Time to Complete Discovery from Lawerence Lee Smith Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 9/24/2010 (Belodoff, Howard)
69 DOCKET ENTRY ORDER granting Plaintiffs' unopposed 68 Motion for Extension of Time to Complete Discovery (Docket No. 68). Plaintiffs' counsel seeks an additional two weeks to serve Defendants' counsel with signed interrogatory responses for Plaintiff Lawrence Lee Smith. For good cause, the motion is granted and the deadline to serve verified interrogatory responses is hereby extended to September 14, 2010. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
70 ORDER RE: MOTION TO WITHDRAW FROM REPRESENTATION OF PLAINTIFF CRAIG FOX, re 46 MOTION to Withdraw 41 MOTION to Compel Unopposed Motion to Withdraw filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Brian S. Carson, Janet F. Bell, Craig Fox. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
71 ORDER RE: MOTION TO WITHDRAW FROM REPRESENTATION OF PLAINTIFF JONATHON LEIGH MILLER, granting 66 Motion to Withdraw as Attorney. Attorney Howard A Belodoff and Kristi N O'Malley terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
72 ORDER RE: MOTION TO WITHDRAW FROM REPRESENTATION OF PLAINTIFF KIRK ROSS, granting 67 Motion to Withdraw as Attorney. Attorney Howard A Belodoff and Kristi N O'Malley terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 25 of 46

09/07/2010 09/13/2010 09/28/2010 09/29/2010
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10/15/2010 10/19/2010 10/19/2010 10/19/2010 10/20/2010 10/25/2010

73 PROTECTIVE ORDER re 50 Motion for Protective Order. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)
74 RETURN MAIL undelivered as to Kirk Ross c/o River of Life re: 73 Order on Motion for Protective Order. (cjm) (Entered: 09/17/2010)
75 MOTION to Withdraw as Attorney Kirsten Scheffler Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 10/22/2010 (Belodoff, Howard)
76 DOCKET ENTRY ORDER granting 75 Unopposed Motion to Withdraw as Counsel (Docket No. 75). Attorney Kirstin Scheffler is no longer employed by Latham & Watkins and therefore will not work on this case any longer. Plaintiffs have three remaining attorneys from Latham & Watkins and a total of six attorneys representing their interests. Accordingly, the motion is granted. Attorney Kirstin Scheffler terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
77 MOTION for Summary Judgment Valencia J Bilyeu appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 10/25/2010 (Attachments: # 1 Statement of Material Facts, # 2 Memorandum, # 3 Affidavit Officer Tony Dotson, # 4 Affidavit Officer Andrew Johnson, # 5 Affidavit Officer Kevin O'Rourke, # 6 Affidavit Sgt. Clair Walker, # 7 Affidavit Chief Michael Masterson, # 8 Affidavit James Hall)(Bilyeu, Valencia)
78 AFFIDAVIT re 77 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Attachments: # 1 Shuler Exhibits 1−7, # 2 Shuler Exhibits 8−13)(Bilyeu, Valencia)
79 AFFIDAVIT of Valencia Bilyeu re 77 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Attachments: # 1 Bilyeu Exhibits 30−39, # 2 Bilyeu Exhibits 40−46, # 3 Bilyeu Exhibits 47−51, # 4 Bilyeu Exhibits 52−53, # 5 Bilyeu Exhibits 54−56, # 6 Bilyeu Exhibits 57−59, # 7 Bilyeu Exhibits 60−62, # 8 Bilyeu Exhibits 63, # 9 Bilyeu Exhibits 64−1, # 10 Bilyeu Exhibits 64−2, # 11 Bilyeu Exhibits 65, # 12 Bilyeu Exhibits 66−67, # 13 Bilyeu Exhibits 68−1, # 14 Bilyeu Exhibits 68−2, # 15 Bilyeu Exhibits 69, # 16 Bilyeu Exhibits 71)(Bilyeu, Valencia)
80 MOTION to Dismiss Plaintiff Lawrence Lee Smith Scott B Muir appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 11/8/2010 (Attachments: # 1 Affidavit of Scott Muir, # 2 Memorandum in Support)(Muir, Scott)
81 DOCKET TEXT NOTICE of Hearing on Motion 77 MOTION for Summary Judgment, 80 MOTION to Dismiss Plaintiff Lawrence Lee Smith : Motion Hearing set for 12/7/2010 01:30 PM (Mtn.)in Boise, ID before Judge Ronald E Bush. Courtroom #7 on 5th Floor Federal Bldg.(lc)
82 DOCKET TEXT AMENDED NOTICE of Hearing on Motion 77 MOTION for Summary Judgment, 80 MOTION to Dismiss Plaintiff Lawrence Lee Smith : Motion Hearing set for 12/14/2010 09:30 AM (MTN. TIME) in Boise, ID before Judge Ronald E Bush. 5th Floor, Courtroom #7.(lc)
83 DOCKET TEXT AMENDED NOTICE of Hearing on Motion 77 MOTION for Summary Judgment, 80 MOTION to Dismiss Plaintiff Lawrence Lee Smith : Motion Hearing set for the Correct Date is Friday, 12/10/2010 09:30 AM (MTN.) in Boise, ID before Judge Ronald E Bush. (lc)
84 STIPULATION & Joint Motion to Vacate & Reset Trial Date & Deadlines by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Muir, Scott)
85 RESPONSE to Motion re 77 MOTION for Summary Judgment filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Replies due by 11/12/2010. (Attachments: # 1 Statement of Disputed Material Facts − Redacted, # 2 Affidavit of Fawn Pettet, # 3 Declaration of

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 26 of 46

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Kristi O'Malley, # 4 Public Exhibits 1−22, # 5 Public Exhibits 23−34, # 6 Public Exhibits 35−45, # 7 Public Exhibits 46−57, # 8 Public Exhibits 58−105, # 9 Public Exhibits 106−139)(Sullivan, Marguerite)
86 Sealed Document Re: 85 Response to Motion, Response to Motion, Response to Motion Statement of Disputed Material Facts − Unredacted. (O'Malley, Kristi)
87 Sealed Document Re: 85 Response to Motion, Response to Motion, Response to Motion Sealed Exhibits 23, 42, 45, 48, 50, 51, 53, and 56. (O'Malley, Kristi)
88 AFFIDAVIT of Howard Belodoff re 72 Order on Motion to Withdraw as Attorney, Order on Motion to Withdraw as Attorney filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. (Belodoff, Howard)
89 AFFIDAVIT of Howard Belodoff re 71 Order on Motion to Withdraw as Attorney, Order on Motion to Withdraw as Attorney filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. (Belodoff, Howard)
90 AFFIDAVIT of Howard Belodoff re 70 Order, Order filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. (Belodoff, Howard)
91 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Allyson M Maltas. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 12/2/2010 (Attachments: # 1 Motion to Waive Pro Hac Vice Fees, # 2 Affidavit in Support of Motion to Waive Fees)(Belodoff, Howard)
92 RESPONSE to Motion re 80 MOTION to Dismiss Plaintiff Lawrence Lee Smith filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Replies due by 11/26/2010. (Attachments: # 1 Affidavit, # 2 Exhibit)(Belodoff, Howard)
93 MOTION to Withdraw as Attorney Kristi N. O'Malley Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 12/3/2010 (Belodoff, Howard)
94 DOCKET ENTRY ORDER granting the parties' Joint Motion and Stipulation to Vacate and Reset Trial Date and Deadlines (Docket No. 84). Given the close proximity of the trial date to the summary judgment hearing, the Court finds good cause to vacate the trial date and associated deadlines. A new trial date will be set after the summary judgment motion hearing. Signed by Judge Ronald E Bush. (kp)
95 REPLY to Response to Motion re 77 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Attachments: # 1 Affidavit Scott B. Muir, # 2 Exhibit A to Muir Affidavit, # 3 Exhibit B to Muir Affidavit, # 4 Exhibit C to Muir Affidavit, # 5 Exhibit D to Muir Affidavit)(Bilyeu, Valencia)
96 MOTION to Strike 85 Response to Motion, Response to Motion, Response to Motion Valencia J Bilyeu appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 12/6/2010 (Attachments: # 1 Memorandum in Support)(Bilyeu, Valencia)
97 MOTION re 85 Response to Motion, Response to Motion, Response to Motion to Augment Record Valencia J Bilyeu appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 12/6/2010 (Attachments: # 1 Memorandum in Support Memo Supporting Motion to Augment Record)(Bilyeu, Valencia)

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 27 of 46

11/15/2010
11/15/2010
11/15/2010
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12/07/2010 12/07/2010 12/09/2010

98 DOCKET ENTRY ORDER− Finding good cause therefore, IT IS HEREBY ORDERED that Allyson M. Maltas' Motion for Admission Pro Hac Vice and Motion for Waiver of Fees (Docket No. 91) are GRANTED. Per General Order 206, out−of−state counsel shall immediately register for ECF. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
99 DOCKET ENTRY ORDER granting 93 unopposed Motion to Withdraw as Attorney. Attorney Kristi O'Malley is no longer employed by the law firm of Latham & Watkins and therefore will no longer work on this case. Plaintiffs have six other attorneys of record, including local counsel, Howard Belodoff, and three other attorneys from Latham & Watkins. Accordingly, the motion is granted. Attorney Kristi N O'Malley terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
100 DOCKET ENTRY ORDER shortening the time to respond to Defendants' Motion to Strike (Docket No. 96) and Motion to Augment Record (Docket No. 97). These motions are inextricably connected to Defendants' summary judgment motion set for hearing on December 10, 2010. Accordingly, the time set for a response is hereby shortened to December 1, 2010 and a reply, if any, must be filed on or before December 7, 2010. Signed by Judge Ronald E Bush. (kp)
Set/Reset Deadlines as to 96 MOTION to Strike 85 Response to Motion, Response to Motion, Response to Motion, 97 MOTION re 85 Response to Motion, Response to Motion, Response to Motion to Augment Record. Responses due by 12/1/2010 Replies due by 12/7/2010. (jm) (Entered: 11/18/2010)
101 REPLY to Response to Motion re 80 MOTION to Dismiss Plaintiff Lawrence Lee Smith filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Muir, Scott)
102 ORDER Dismissing Claims of Plaintiffs Fox, Miller, and Ross. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)
103 RESPONSE to Motion re 97 MOTION re 85 Response to Motion, Response to Motion, Response to Motion to Augment Record (Non−Opposition) filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Replies due by 12/20/2010.(Sullivan, Marguerite)
104 RESPONSE to Motion re 96 MOTION to Strike 85 Response to Motion, Response to Motion, Response to Motion filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Replies due by 12/20/2010.(Sullivan, Marguerite)
105 DOCKET ENTRY ORDER granting 97 Defendants' unopposed Motion to Augment Record (Docket No. 97). The entire document, "Boise's 10−Year Plan to Reduce and Prevent Chronic Homelessness" is part of the record for the purposes of summary judgment. See Scott Muir Aff., Ex. A (Docket No. 95−2). Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
106 REPLY to Response to Motion re 96 MOTION to Strike 85 Response to Motion, Response to Motion, Response to Motion filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Muir, Scott)
107 MOTION for Leave to File Sur−reply in Opposition to Defendants' Motion to Dismiss Plaintiff Lawrence Lee Smith Marguerite Sullivan appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 1/3/2011 (Attachments: # 1 Proposed Sur−reply)(Sullivan, Marguerite)
108 DOCKET ENTRY ORDER granting 107 Motion for Leave to File Sur−Reply (Docket No. 107). Plaintiffs' counsel informed the Court that Defendants do not object to the motion. Accordingly and with good cause therefore, the Court hereby grants Plaintiffs' motion and will consider the Sur−Reply (Docket No. 107−1) filed in opposition to

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 28 of 46

12/10/2010
12/22/2010 12/29/2010
05/11/2011
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07/06/2011 07/12/2011 08/11/2011

Defendants' Motion to Dismiss Plaintiff Lawrence Lee Smith. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
109 Minute Entry for proceedings held before Judge Ronald E Bush: Motion Hearing held on 12/10/2010 re 96 MOTION to Strike 85 Response to Motion, Response to Motion, Response to Motion filed by Boise Police Department, City of Boise, Idaho, Michael Masterson, 77 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson, 80 MOTION to Dismiss Plaintiff Lawrence Lee Smith filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Motions Under Advisement. (Court Reporter/ESR Vicki Jones.) (lc)
110 NOTICE by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith of Serving Discovery Responses (Sullivan, Marguerite)
CORRECTIVE ENTRY − The entry docket number 110 Notice (Other), filed by Robert Martin, James M. Godfrey, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey, Lawerence Lee Smith, Robert Anderson, Kirk Ross, Brian S. Carson, Jonathan Leigh Milller, Craig Fox was filed incorrectly in this case. Pursuant to Local Rule 5.4 Non−Filing of Discovery, discovery documents must be served upon other counsel and parties but must not be filed with the Clerk of Court unless on order of the court or for use in the proceeding(krb)
111 Transcript of Proceedings held on December 10, 2010 before Judge Ronald E. Bush. Court Reporter/Transcriber Trinidad Diaz/ NW Transcripts, LLC, Telephone number 208−908−7998. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 6/6/2011. Redacted Transcript Deadline set for 6/16/2011. Release of Transcript Restriction set for 8/12/2011.(krb) (Entered: 05/12/2011)
112 Notice of Filing of Official Transcript (krb)
113 MOTION to Withdraw as Attorney Allyson Maltas Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. Responses due by 6/24/2011 (Belodoff, Howard)
114 DOCKET ENTRY ORDER granting 113 Motion to Withdraw as Attorney. Counsel for Plaintiffs, attorney Allyson M. Maltas, will no longer be working for Latham & Watkins and therefore will not work on this case any longer. Plaintiffs have five remaining attorneys to represent their interests. Accordingly, the motion is granted. Attorney Allyson M Maltas terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kp)
115 MEMORANDUM DECISION AND ORDER granting 77 Motion for Summary Judgment; finding as moot 80 Motion to Dismiss; finding as moot 96 Motion to Strike. Plaintiffs Amended Complaint is DISMISSED. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by krb)
116 JUDGMENT dismissing case with prejudice. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)
117 NOTICE OF APPEAL as to 116 Judgment, 115 Order on Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to Strike, Order on Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to Strike by Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Filing fee $ 455, receipt number 0976−781109. (Notice sent to Court Reporter & 9th Cir) (Belodoff, Howard)

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04/30/2013 05/06/2013

118 USCA Case Number 11−35674 for 117 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, James M. Godfrey, Robert Anderson, Pamela Hawkes, Brian S. Carson, Janet F. Bell, Basil E. Humphrey. (dks) (Entered: 08/16/2011)
119 USCA Time Schedule Order as to 117 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, James M. Godfrey, Robert Anderson, Pamela Hawkes, Brian S. Carson, Janet F. Bell, Basil E. Humphrey. (Notice sent by e−mail to Court Reporter) (dks) (Entered: 08/16/2011)
120 MOTION to Withdraw as Attorney Scott B Muir appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 9/23/2011 (Muir, Scott)
121 DOCKET ENTRY ORDER granting 120 Motion to Withdraw as Attorney. Attorney Valencia J. Bilyeu terminated. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by kb)
122 OPINION of USCA as to 117 Notice of Appeal. Reversed & Remanded. (jp) (Entered: 03/08/2013)
123 NOTICE of Hearing: Telephonic Scheduling Conference set for 4/30/2013 10:30 AM (Mtn. Time) in Telephonic Hearing − Boise Courtroom 7 before Judge Ronald E Bush. (Attachments: # 1 Litigation Plan Materials due 4/19/13). *Instructions for preparation of Conference contained in this Notice with attachments.(lc)
124 MANDATE of USCA as to 117 Notice of Appeal (jp)
125 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Robert Anderson, Janet F. Bell, Brian S. Carson, Craig Fox, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Jonathan Leigh Milller, Kirk Ross, Lawerence Lee Smith. (Belodoff, Howard)
126 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Muir, Scott)
127 ERRATA by Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson re 126 Scheduling Conf Form/Litigation Plan . (Muir, Scott)
128 MOTION to Waive Pro Hac Vice Fees Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/20/2013 (Attachments: # 1 Supplement Affidavit in Support of Motion to Waive Fees, # 2 Supplement Application for Admission Pro Hac Vice, # 3 Supplement Application for Admission for Pro Hac Vice)(Belodoff, Howard)
129 MOTION to Withdraw as Attorney Tulin Ozdeger Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/20/2013 (Belodoff, Howard)
130 MOTION to Withdraw as Attorney Karen Cunningham Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/20/2013 (Belodoff, Howard)
131 SUPPLEMENT by Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith re 125 Scheduling Conf Form/Litigation Plan . (Attachments: # 1 Affidavit Declaration of Howard Belodoff in Support of Supplement to Litigation Plan)(Belodoff, Howard)
132 DOCKET TEXT NOTICE: Today's TSC VACATED. (lc)
133 ORDER Granting Motions to Withdraw, re: 129 Motion to Withdraw as Attorney; re: 130 Motion to Withdraw as Attorney. Attorney Karen E Cunningham and Tulin Ozdeger terminated. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

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05/09/2013 06/20/2013
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134 SUPPLEMENT by Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson re 131 Supplement, Objection to Plaintiffs' Supplement to Litigation Plan. (Muir, Scott)
135 CASE MANAGEMENT ORDER ON REMAND. Dispositive motions on the identified legal issues shall be filed on or before 8/16/13. If claims remain after the Court issues its decision the applicability of the preclusion doctrines and Heck v. Humphrey, then the Court will consider allowing additional discovery at that time.( Dispositive Motions due by 8/16/13). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 06/21/2013)
136 MOTION to Withdraw as Attorney and Substitute Counsel Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 8/19/2013 (Belodoff, Howard)
137 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Eric S. Tars. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 8/19/2013 (Belodoff, Howard)
138 ORDER GRANTING MOTION FOR WAIVER OF PRO HAC VICE FEES re 128 Motion to Waive; granting 137 Motion for Pro Hac Vice and Waiver of Fees (Pro Bono) of attorney Aziz Ahmad for all plaintiffs. Per General Order 206, out−of−state counsel shall immediately register for ECF. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
139 ORDER GRANTING MOTION TO WITHDRAW AND SUBSTITUTE COUNSEL 136 Motion to Withdraw as Attorney. Attorney Heather Maria Johnson terminated. Attorney Eric S Tars added as counsel. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
140 NOTICE of Appearance by Kelley Kathleen Fleming on behalf of All Defendants (Fleming, Kelley)
141 Second MOTION for Summary Judgment Scott B Muir appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 9/9/2013 (Attachments: # 1 Statement of Undisputed Facts, # 2 Affidavit of Scott B. Muir, # 3 Memorandum Supporting Second Summary Judgment)(Muir, Scott)
142 DOCKET TEXT NOTICE of Hearing on Motion 141 Second MOTION for Summary Judgment : Motion Hearing set for 11/13/2013 10:00 AM (Mountain Time) in Boise − Courtroom 7 before Judge Ronald E. Bush. (lc)
143 RESPONSE to Motion re 141 Second MOTION for Summary Judgment filed by Robert Anderson, Janet F. Bell, Brian S. Carson, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Replies due by 9/26/2013. (Attachments: # 1 Statment of Disputed Material Facts−Redacted, # 2 Declaration of Aziz Ahmad, # 3 Exhibit 140, # 4 Exhibit 141, # 5 Exhibit 142, # 6 Exhibit 143, # 7 Exhibit 144, # 8 Exhibit 145, # 9 Exhibit 146)(Valentine, Rebecca)
144 Sealed Document Re: 143 Response to Motion, Statement of Disputed Material Facts−Unredacted. (Sullivan, Marguerite)
145 Sealed Document Re: 143 Response to Motion, Exhibits 23,42,45,48,50,51 and 56−Unredacted. (Sullivan, Marguerite)
146 REPLY to Response to Motion re 141 Second MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Muir, Scott)
147 DOCKET TEXT AMENDED NOTICE of Hearing on Motion 141 Second MOTION for Summary Judgment : New Hearing date is: Motion Hearing set for 11/14/2013 10:00 AM in Boise − Courtroom 7 before Judge Ronald E. Bush. (lc)

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11/14/2013 11/14/2013 12/18/2013
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148 Minute Entry for proceedings held before Judge Ronald E. Bush: Motion Hearing held on 11/14/2013 re 141 Second MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Motion Under Advisement, written decision forthcoming. (Court Reporter/ESR S. O'Larey.) (so)
149 Minute Entry for proceedings held before Judge Ronald E. Bush: AMENDING MINUTES: to reflect correct case caption 148 . (Court Reporter/ESR S. O'Larey.) (so) (Entered: 11/19/2013)
150 Transcript of Proceedings held on 11/14/2013 (Motion Hearing) before Judge Ronald E. Bush. Court Reporter/Transcriber Canyon Transcription, Telephone number 208−454−1010. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 1/13/2014. Redacted Transcript Deadline set for 1/24/2014. Release of Transcript Restriction set for 3/21/2014.(st)
151 Notice of Filing of Official Transcript (st)
152 ORDER granting in part and denying in part 141 Motion for Summary Judgment. Plaintiffs' second amended complaint shall be filed by February 25, 2014. A stipulated litigation plan is due no later than 20 days after Defendants respond to the amended Complaint.Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kb)
Set Deadlines/Hearings: Amended Complaint due by 2/25/2014. (Per Order, dkt #152)(st)
153 NOTICE of Appearance by Michael W Moore on behalf of All Defendants (Moore, Michael)
154 SECOND AMENDED COMPLAINT for Injunctive and Declaratory Relief (REDACTED) against Boise Police Department, City of Boise, Idaho, Michael Masterson, filed by Robert Anderson, Robert Martin, Basil E. Humphrey, Lawerence Lee Smith, Janet F. Bell, Pamela Hawkes.(Sullivan, Marguerite) Modified on 2/28/2014 to edit document title in the docket text (st).
155 Sealed Document Re: 154 Amended Complaint, (Sealed Version of Second Amended Complaint). (Sullivan, Marguerite)
156 MOTION to Strike 154 Amended Complaint, and dismiss portions of 2nd amended complaint Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 4/7/2014 (Attachments: # 1 Memorandum in Support)(Hall, Brady)
157 DOCKET TEXT NOTICE of Hearing on Motion 156 MOTION to Strike 154 Amended Complaint, and dismiss portions of 2nd amended complaint : Motion Hearing set for 5/15/2014 10:00 AM in Boise − Courtroom 7 before Judge Ronald E. Bush. (lc)
158 DOCKET ENTRY ORDER. The parties need not file the stipulated litigation plan required by the Order at Docket 152 at this time. Litigation deadlines will be reset after the Court rules on the pending motion to dismiss. Signed by Judge Ronald E. Bush. ((kb)
159 RESPONSE to Motion re 156 MOTION to Strike 154 Amended Complaint, and dismiss portions of 2nd amended complaint filed by Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Replies due by 4/24/2014. (Attachments: # 1 Declaration of Rebecca Valentine, # 2 Exhibit A Declaration of Rebecca Valentine, # 3 Exhibit B Declaration of Rebecca Valentine, # 4 Exhibit C Declaration of Rebecca Valentine, # 5 Exhibit D Declaration of Rebecca Valentine)(Valentine, Rebecca)
160 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Krysta Copeland. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/5/2014

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(Attachments: # 1 Affidavit of Belodoff in Support of Motion to Waive Fees)(Belodoff, Howard)
161 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Jeremy Rosen. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/5/2014 (Attachments: # 1 Affidavit of Belodoff in Support of Motion to Waive Fees)(Belodoff, Howard)
162 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Jared Stark. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Brian S. Carson, James M. Godfrey, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/5/2014 (Attachments: # 1 Affidavit of Belodoff in Support of Motion to Waive Fees)(Belodoff, Howard)
163 MEMORANDUM in Support re 156 MOTION to Strike 154 Amended Complaint, and dismiss portions of 2nd amended complaint Reply Memorandum in Support of Motion to Strike and Motion to Dismiss Portions of Plaintiffs' Second Amended Complaint filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Moore, Michael)
CORRECTIVE ENTRY − The entry docket number 163 Memorandum in Support of Motion, filed by Boise Police Department, City of Boise, Idaho, Michael Masterson was filed incorrectly in this case as the wrong event was used. The filing party shall re−submit their filing using the correct event of "Reply to Response to Motion" located under Responses and Replies.(cjm)
164 REPLY to Response to Motion re 156 MOTION to Strike 154 Amended Complaint, and dismiss portions of 2nd amended complaint Reply Memorandum in Support of Motion to Strike and Motion to Dismiss Portions of Plaintiffs' Second Amended Complaint filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Moore, Michael)
165 ORDER GRANTING MOTIONS FOR WAIVER OF PRO HAC VICE FEES. IT IS HEREBY ORDERED that the Motions for Waiver of Pro Hac Vice Fees (Dkts. 160 , 161 , 162 ) are GRANTED. Per General Order 206, out−of−state counsel shall immediately register for ECF. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 04/25/2014)
166 Minute Entry for proceedings held before Judge Ronald E. Bush: Motion Hearing held on 5/15/2014 re 156 MOTION to Strike 154 Amended Complaint, and dismiss portions of 2nd amended complaint filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. UNDER ADVISEMENT. (Court Reporter/ESR lcase.) (lc)
167 NOTICE of Change of Address by Michael W Moore (Moore, Michael)
168 Transcript of Proceedings held on 5/15/2014 (Motion Hearing) before Judge Ronald E. Bush. Court Reporter/Transcriber Canyon Transcription, Telephone number 208−454−1010. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 8/11/2014. Redacted Transcript Deadline set for 8/21/2014. Release of Transcript Restriction set for 10/17/2014.(cjm)
169 Notice of Filing of Official Transcript (cjm)
170 MEMORANDUM DECISION AND ORDER ON DEFENDANTS' MOTION TO STRIKE AND DISMISS PORTIONS OF THE SECOND AMENDED COMPLAINT. ACCORDINGLY, IS HEREBY ORDERED that Defendants' Motion to Strike and Dismiss Portions of Plaintiffs' Second Amended Complaint 156 is GRANTED, in part, and DENIED, in part. Plaintiffs shall file a Revised Second Amended Complaint by 7/31/2014. The stipulated litigation plan is due on or before 8/7/2014. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses

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listed on the Notice of Electronic Filing (NEF) by (st)
171 AMENDED COMPLAINT (Revised Second) (Redacted) against City of Boise, Boise Police Department, and Michael Masterson filed by Robert Anderson, Robert Martin, Basil E. Humphrey, Lawerence Lee Smith, Janet F. Bell, Pamela Hawkes.(Valentine, Rebecca) Modified on 8/1/2014 to edit applicable parties at attorney's request (st).
172 Sealed Document Re: 171 Amended Complaint, (Revised Second). (Sullivan, Marguerite)
173 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by City of Boise, Idaho. (Moore, Michael)
174 SCHEDULING CONFERENCE FORM − LITIGATION PLAN by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. (Ahmad, Aziz)
175 Defendants' ANSWER to Complaint re 171 Revised Second Amended Complaint by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Moore, Michael) Modified on 8/21/2014 to link to dkt #171 (st).
176 NOTICE by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith of Withdrawal of Attorney Jared Stark (Valentine, Rebecca)
177 CASE MANAGEMENT ORDER. (Judicially Supervised Settlement Conference shall be held by 3/2/2015, Dispositive Motions due by 4/30/2015.) Counsel shall identify one person to be responsible for contacting Ms. Boring−Headlee on or before 10/9/2014 to begin the process of finding a judge and scheduling this matter for a settlement conference. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
178 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Allen M. Gardner. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 11/24/2014 (Attachments: # 1 Affidavit)(Belodoff, Howard)
179 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Daniel I. Levy. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 11/24/2014 (Attachments: # 1 Affidavit)(Belodoff, Howard)
*Please disregard this entry as it was generated in error*. CORRECTIVE ENTRY − Docket number 178 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Allen M. Gardner and 179 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Daniel I. Levy filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey was filed using the wrong form. The filing party shall re−submit their filings using the form located on the Court's website at id.uscourts.gov( st) Modified on 10/31/2014 to note that this was generated in error (st).
180 ORDER SETTING SETTLEMENT CONFERENCE AND SETTLEMENT QUESTIONNAIRE. Each party shall prepare and submit to the Court on or before Wednesday, 11/19/2014 at 5:00 p.m., a candid summation of its assessment of the strengths of its case and the strengths of the opposing party's case. (Settlement Conference set for 12/2/2014 09:30 AM in Boise − Courtroom 1 before Judge Larry M. Boyle.). Signed by Judge Larry M. Boyle. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
181 Minute Entry for proceedings held before Judge Larry M. Boyle: Settlement Conference held on 12/2/2014. Case Not Settled. Time in Court 8 hours. (Court Reporter/ESR Susie Headlee.) (st) (Entered: 12/04/2014)
182 MOTION to Modify the Courts Case Management Order to Extend the Deadline for Plaintiffs' Expert Disclosures re 177 Order, Set Deadlines/Hearings,,,, Rebecca

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Valentine appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 1/8/2015 (Valentine, Rebecca)
183 MEMORANDUM in Opposition re 182 MOTION to Modify the Courts Case Management Order to Extend the Deadline for Plaintiffs' Expert Disclosures re 177 Order, Set Deadlines/Hearings,,,, filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 1/5/2015.(Hall, Brady)
184 AFFIDAVIT in Opposition re 182 MOTION to Modify the Courts Case Management Order to Extend the Deadline for Plaintiffs' Expert Disclosures re 177 Order, Set Deadlines/Hearings,,,, Affidavit of Counsel Brady Hall filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 1/5/2015. (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4 Exhibit Ex. D, # 5 Exhibit Ex. E, # 6 Exhibit Ex. F)(Hall, Brady)
185 ORDER GRANTING MOTIONS FOR WAIVE OF PRO HAC VICE FEES. IT IS HEREBY ORDERED that the Motions for Waiver of Pro Hac Vice Fees 178 & 179 areGRANTED. Per General Order 206, out−of−state counsel shall immediately register for ECF. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 12/19/2014)
186 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Katherine M. Cheng. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 1/15/2015 (Attachments: # 1 Affidavit of Howard Belodoff)(Belodoff, Howard)
187 ORDER GRANTING MOTION FOR WAIVER OF PRO HAC VICE FEES re 186 Motion for Pro Hac Vice and Waiver of Fees (Pro Bono) of attorney Katherine M Cheng for Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, and Lawerence Lee Smith. Per General Order 206, out−of−state counsel shall immediately register for ECF.. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
188 MOTION to Dismiss Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 1/26/2015 (Attachments: # 1 Memorandum in Support Memorandum in Support)(Hall, Brady)
189 AFFIDAVIT of Megan McJunkin re 188 MOTION to Dismiss filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
190 AFFIDAVIT re 188 MOTION to Dismiss filed by Boise Police Department, City of Boise, Idaho, Michael Masterson December 31, 2014 Affidavit of Counsel Brady J. Hall. (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9)(Hall, Brady)
191 WITHDRAWAL OF DOCUMENT re: 182 MOTION to Modify the Courts Case Management Order to Extend the Deadline for Plaintiffs' Expert Disclosures re 177 Order, Set Deadlines/Hearings,,,, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey. (Valentine, Rebecca)
192 DOCKET ENTRY ORDER finding MOOT the Motion to Modify Case Management Order 182 in light of Plaintiffs' withdrawal of that Motion (Dkt. 191). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kb)
193 MOTION for Protective Order To Limit the Scope of Deposition of Anamarie Guiles Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 1/29/2015 (Attachments: # 1 Memorandum in Support)(Hall, Brady)
194 AFFIDAVIT of Brady J. Hall re 193 MOTION for Protective Order To Limit the Scope of Deposition of Anamarie Guiles filed by Boise Police Department, City of

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Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Hall, Brady)
195 ORDER. IT IS HEREBY ORDERED that the 193 is DENIED, in part and GRANTED in part, as set forth in more detail above. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
196 MOTION to Modify the Court's Case Management Order to Extend the Deadline for Factual Discovery re 177 Order, Set Deadlines/Hearings,,,, Aziz Ahmad appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 2/9/2015 (Attachments: # 1 Declaration of Aziz Ahmad, # 2 Exhibit A to Declaration, # 3 Exhibit B to Declaration, # 4 Exhibit C to Declaration, # 5 Exhibit D to Declaration, # 6 Exhibit E to Declaration, # 7 Exhibit F to Declaration, # 8 Exhibit G to Declaration)(Ahmad, Aziz)
197 DOCKET TEXT NOTICE of Hearing on Motion 188 MOTION to Dismiss : Motion Hearing set for 3/3/2015 10:00 AM in Boise − Courtroom 7 before Judge Ronald E. Bush. (lc)
198 MOTION to Withdraw as Attorney Jeremy Rosen Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 2/17/2015 (Belodoff, Howard)
199 RESPONSE to Motion re 196 MOTION to Modify the Court's Case Management Order to Extend the Deadline for Factual Discovery re 177 Order, Set Deadlines/Hearings,,,, filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 2/12/2015.(Hall, Brady)
200 DECLARATION of Counsel Brady J. Hall re 199 Response to Motion, filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Hall, Brady)
201 RESPONSE to Motion re 188 MOTION to Dismiss filed by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Replies due by 2/12/2015. (Attachments: # 1 Affidavit of Rebecca Valentine, # 2 Exhibit A to Affidavit of Rebecca Valentine, # 3 Exhibit B to Affidavit of Rebecca Valentine, # 4 Exhibit C to Affidavit of Rebecca Valentine, # 5 Exhibit D to Affidavit of Rebecca Valentine, # 6 Exhibit E to Affidavit of Rebecca Valentine, # 7 Affidavit of Howard Belodoff)(Valentine, Rebecca)
202 MOTION to Quash Subpoena to Interfaith Sanctuary Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 2/20/2015 (Hall, Brady)
203 RESPONSE to Motion re 202 MOTION to Quash Subpoena to Interfaith Sanctuary filed by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Replies due by 2/13/2015. (Attachments: # 1 Declaration of Rebecca Valentine, # 2 Exhibit A to Declaration of Rebecca Valentine)(Valentine, Rebecca)
204 REPLY to Response to Motion re 202 MOTION to Quash Subpoena to Interfaith Sanctuary filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. (Attachments: # 1 Affidavit, # 2 Exhibit)(Hall, Brady)
205 ORDER GRANTING MOTION TO WITHDRAW granting 198 Motion to Withdraw as Attorney. Attorney Jeremy N Rosen terminated. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 01/29/2015)
206 MOTION for Leave to File Sur−Reply to Defendants' Reply Re: Motion to Quash Rebecca Valentine appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 2/23/2015 (Attachments: # 1 Proposed Sur−Reply, # 2 Declaration of Rebecca Valentine, # 3 Exhibit A to Declaration of Rebecca Valentine)(Valentine, Rebecca)

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207 MOTION to Withdraw as Attorney Aziz Ahmad Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 3/2/2015 (Belodoff, Howard)
208 MOTION for Sanctions for Spoliation of Documents Rebecca Valentine appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 3/5/2015 (Attachments: # 1 Memorandum in Support, # 2 Declaration of Rebecca Valentine, # 3 Exhibit A to Declaration of Rebecca Valentine, # 4 Exhibit B to Declaration of Rebecca Valentine, # 5 Exhibit C to Declaration of Rebecca Valentine, # 6 Exhibit D to Declaration of Rebecca Valentine, # 7 Exhibit E to Declaration of Rebecca Valentine, # 8 Exhibit F to Declaration of Rebecca Valentine, # 9 Exhibit G to Declaration of Rebecca Valentine, # 10 Exhibit H to Declaration of Rebecca Valentine, # 11 Exhibit I to Declaration of Rebecca Valentine, # 12 Declaration of Katherine Cheng)(Valentine, Rebecca)
209 DOCKET TEXT AMENDED NOTICE of Hearing on Motions 208 MOTION for Sanctions for Spoliation of Documents, 188 MOTION to Dismiss : Motion Hearing set for 4/8/2015 10:00 AM (Mountain Time) in Boise − Courtroom 7 before Judge Ronald E. Bush. (lc)
210 ORDER GRANTING MOTION TO WITHDRAW 207 . Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
211 REPLY to Response to Motion re 196 MOTION to Modify the Court's Case Management Order to Extend the Deadline for Factual Discovery re 177 Order, Set Deadlines/Hearings,,,, filed by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. (Attachments: # 1 Feb. 12, 2015 Declaration of Howard Belodoff, # 2 Exhibit A to Feb. 12, 2015 Belodoff Declaration, # 3 Exhibit B to Feb. 12, 2015 Belodoff Declaration, # 4 Exhibit C to Feb. 12, 2015 Belodoff Declaration, # 5 Exhibit D to Feb. 12, 2015 Belodoff Declaration, # 6 Exhibit E to Feb. 12, 2015 Belodoff Declaration, # 7 Exhibit F to Feb. 12, 2015 Belodoff Declaration, # 8 Feb. 12, 2015 Declaration of Rebecca Valentine, # 9 Exhibit A to Feb. 12, 2015 Valentine Declaration)(Valentine, Rebecca)
212 REPLY re 188 MOTION to Dismiss , 201 Response to Motion,, filed by Boise Police Department, City of Boise, Idaho, Michael Masterson Defendants' Reply Brief in Support of Motion to Dismiss Various Named Parties With Prejudice. (Hall, Brady)
CORRECTIVE ENTRY − The entry docket number 212 Reply (generic), filed by Boise Police Department, City of Boise, Idaho, Michael Masterson was filed incorrectly in this case as the wrong event was used. The filing party shall re−submit their filing using the correct event of "Reply to Response to Motion" located under Responses and Replies. using this event correctly links to the motion and terms the reply deadline.(cjs)
213 REPLY to Response to Motion re 188 MOTION to Dismiss Defendants' Reply Brief in Support of Motion to Dismiss Various Named Parties With Prejudice filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Hall, Brady)
214 MOTION to Withdraw as Attorney Rebecca Valentine Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 3/30/2015 (Belodoff, Howard)
215 RESPONSE to Motion re 208 MOTION for Sanctions for Spoliation of Documents filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 3/23/2015.(Hall, Brady)
216 DECLARATION of Beth Geagan re 215 Response to Motion filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit Ex. A, # 2 Exhibit Ex. B, # 3 Exhibit Ex. C, # 4 Exhibit Ex. D, # 5 Exhibit Ex. E, # 6 Exhibit Ex. F)(Hall, Brady)
217 DECLARATION of Counsel Brady J. Hall re 215 Response to Motion filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit Ex. A)(Hall, Brady)

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218 ORDER GRANTING MOTION TO WITHDRAW. For good cause shown, the Motion to Withdraw 214 is GRANTED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
219 REPLY to Response to Motion re 208 MOTION for Sanctions for Spoliation of Documents filed by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. (Attachments: # 1 Declaration of Katherine Cheng, # 2 Exhibit A to Declaration of Katherine Cheng, # 3 Exhibit B to Declaration of Katherine Cheng, # 4 Exhibit C to Declaration of Katherine Cheng, # 5 Exhibit D to Declaration of Katherine Cheng, # 6 Exhibit E to Declaration of Katherine Cheng, # 7 Exhibit F to Declaration of Katherine Cheng)(Cheng, Katherine)
220 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Scott C. Jones. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 4/17/2015 (Attachments: # 1 Affidavit Of Howard Belodoff)(Belodoff, Howard)
221 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Greer B. Donley. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 4/17/2015 (Attachments: # 1 Affidavit Of Howard Belodoff)(Belodoff, Howard)
222 ORDER GRANTING MOTIONS FOR WAIVER OF PRO HAC VICE FEES granting 220 Motion for Pro Hac Vice and Waiver of Fees (Pro Bono) of attorney Scott C Jones and 221 Motion for Pro Hac Vice and Waiver of Fees (Pro Bono) of attorney Greer B Donley for plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, and Lawrence Lee Smith. Per General Order 206, out−of−state counsel shall immediately register for ECF.. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
223 NOTICE of Change of Address by Howard A Belodoff (Belodoff, Howard)
224 ORDER. Accordingly, Plaintiff's Motion 206 is GRANTED and the Court has considered the sur−reply. Accordingly, Defendants' Motion to Quash 202 isDENIED as moot. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
225 Supplemental Declaration of Beth Geagan re 215 Response to 208 Motion (Hall, Brady) Modified on 4/20/2015 to edit document title in the docket text and to remove reply deadline because this is just a supporting document to dkt #215 (st).
226 Minute Entry for proceedings held before Judge Ronald E. Bush: Motion Hearing held on 4/8/2015 re 188 MOTION to Dismiss filed by Boise Police Department, City of Boise, Idaho, Michael Masterson, 196 MOTION to Modify the Court's Case Management Order to Extend the Deadline for Factual Discovery re 177 Order, Set Deadlines/Hearings,,,, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey, 208 MOTION for Sanctions for Spoliation of Documents filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey. Under Advisement. *Court's Written Order shall Follow. (Court Reporter/ESR L. Case.) (lc)
227 Transcript of Proceedings for Hearing on Motions held on 4/8/2015 before Judge Ronald E. Bush. Court Reporter/Transcriber NW Transcripts, LLC, Telephone number 208−908−7998. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed. Redaction Request due 5/26/2015. Redacted Transcript Deadline set for 6/4/2015. Release of Transcript Restriction set for 7/31/2015.(st) (Entered: 04/30/2015)
228 Notice of Filing of Official Transcript (st)
229 MOTION for Summary Judgment Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by

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04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015 04/30/2015
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5/26/2015 (Attachments: # 1 Statement of Material Facts, # 2 Memorandum in Support Memorandum in support)(Hall, Brady)
230 DECLARATION of Counsel Brady J. Hall re 229 MOTION for Summary Judgment filed by Michael Masterson . (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7)(Hall, Brady)
231 AFFIDAVIT of Michael Culton re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
232 AFFIDAVIT of Edi Bailly re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
233 AFFIDAVIT of Jim Schiffler re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
234 AFFIDAVIT of Allison Duman re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
235 AFFIDAVIT of Bruce Beerman re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
236 AFFIDAVIT of Jamie Heinzerling re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
237 AFFIDAVIT of Lauren Cook re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
238 AFFIDAVIT of Sarah Fendley re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
239 AFFIDAVIT of William Roscoe re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
240 AFFIDAVIT of Jayne Sorrels re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady)
241 AFFIDAVIT of Tom Shuler re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit 1 (part a), # 2 Exhibit 2 (part b), # 3 Exhibit 3 (part c))(Hall, Brady)
242 AFFIDAVIT of Debbie Allen re 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit A (part 1), # 2 Exhibit A (part 2), # 3 Exhibit A (part 3), # 4 Exhibit B)(Hall, Brady)
243 MOTION for Summary Judgment Marguerite Sullivan appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 5/26/2015 (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Memorandum of Points and Authorities, # 3 Declaration of Counsel Scott Jones)(Sullivan, Marguerite)
244 SUPPLEMENT by Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith re 243 MOTION for Summary Judgment (Exhibits 1−25). (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 10, # 10 Exhibit 11, # 11 Exhibit 12, # 12 Exhibit 13, # 13 Exhibit 14, # 14 Exhibit 15, # 15 Exhibit 16, # 16 Exhibit 17, # 17 Exhibit 18, # 18 Exhibit 19, # 19 Exhibit 20, # 20 Exhibit 21, # 21 Exhibit 22 (Part 1), # 22 Exhibit 22 (Part 2), # 23 Exhibit 23, # 24 Exhibit 24 (Part 1), # 25 Exhibit 24 (Part 2), # 26 Exhibit 24 (Part 3), # 27 Exhibit 24 (Part 4), # 28 Exhibit 24 (Part 5), # 29 Exhibit 25 (Part 1), # 30 Exhibit 25 (Part 2))(Sullivan, Marguerite)
245 SUPPLEMENT by Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith re 243 MOTION for Summary Judgment (Exhibits 26−50). (Attachments: # 1 Exhibit 27, # 2 Exhibit 28, # 3 Exhibit 29, # 4 Exhibit 30, # 5 Exhibit 31, # 6 Exhibit 32, # 7 Exhibit 33, # 8 Exhibit 34, # 9 Exhibit 35, # 10 Exhibit 36, # 11 Exhibit 37, # 12 Exhibit 38, # 13 Exhibit 39, # 14 Exhibit 40, # 15 Exhibit 41, # 16 Exhibit 42, # 17 Exhibit 43, # 18 Exhibit 44, # 19

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 39 of 46

05/01/2015
05/01/2015
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05/26/2015 05/26/2015

Exhibit 45, # 20 Exhibit 46, # 21 Exhibit 47, # 22 Exhibit 48, # 23 Exhibit 49, # 24 Exhibit 50)(Sullivan, Marguerite)
246 SUPPLEMENT by Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith re 243 MOTION for Summary Judgment Exhibits (51−75). (Attachments: # 1 Exhibit 52, # 2 Exhibit 53, # 3 Exhibit 54, # 4 Exhibit 55, # 5 Exhibit 56, # 6 Exhibit 57, # 7 Exhibit 58, # 8 Exhibit 59, # 9 Exhibit 60, # 10 Exhibit 61, # 11 Exhibit 62, # 12 Exhibit 63, # 13 Exhibit 64, # 14 Exhibit 65, # 15 Exhibit 66, # 16 Exhibit 67, # 17 Exhibit 68, # 18 Exhibit 69, # 19 Exhibit 70, # 20 Exhibit 71, # 21 Exhibit 72, # 22 Exhibit 73, # 23 Exhibit 74, # 24 Exhibit 75)(Sullivan, Marguerite)
247 SUPPLEMENT by Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith re 243 MOTION for Summary Judgment Exhibits (76−100). (Attachments: # 1 Exhibit 77, # 2 Exhibit 78, # 3 Exhibit 79, # 4 Exhibit 80, # 5 Exhibit 81, # 6 Exhibit 82, # 7 Exhibit 83, # 8 Exhibit 84, # 9 Exhibit 85, # 10 Exhibit 86, # 11 Exhibit 87, # 12 Exhibit 88, # 13 Exhibit 89, # 14 Exhibit 90 (Part 1), # 15 Exhibit 90 (Part 2), # 16 Exhibit 90 (Part 3), # 17 Exhibit 91, # 18 Exhibit 92, # 19 Exhibit 93, # 20 Exhibit 94, # 21 Exhibit 95, # 22 Exhibit 96, # 23 Exhibit 97, # 24 Exhibit 98, # 25 Exhibit 99, # 26 Exhibit 100)(Sullivan, Marguerite)
248 Sealed Document Re: 243 MOTION for Summary Judgment (Statement of Undisputed Material Facts). (Sullivan, Marguerite)
249 Sealed Document Re: 243 MOTION for Summary Judgment (Memorandum of Points and Authorities). (Sullivan, Marguerite)
250 Sealed Document Re: 243 MOTION for Summary Judgment , 244 Supplement,,, (Exhibits 4, 5, 6, 13 & 14). (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 13 (Part 1), # 4 Exhibit 13 (Part 2), # 5 Exhibit 13 (Part 3), # 6 Exhibit 13 (Part 4), # 7 Exhibit 14)(Sullivan, Marguerite)
251 CERTIFICATE OF SERVICE by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith re 245 Supplement,, 246 Supplement,, 244 Supplement,,, 247 Supplement,,, (Sullivan, Marguerite)
252 MOTION to Withdraw as Attorney. (Unopposed) Request to Turn Electronic Noticing OFF (no longer receive NEFs in this case only) by AttorneyMarguerite Sullivan appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 6/15/2015 (Sullivan, Marguerite)
253 MOTION to Withdraw as Attorney. (Unpposed) Request to Turn Electronic Noticing OFF (no longer receive NEFs in this case only) by AttorneyDaniel I Levy appearing for Plaintiffs Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Responses due by 6/15/2015 (Levy, Daniel)
254 MOTION to Strike 243 MOTION for Summary Judgment , 245 Supplement,, 246 Supplement,, 250 Sealed Document, 244 Supplement,,, 247 Supplement,,, Motion to Strike Declaration of Scott Jones Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 6/19/2015 (Attachments: # 1 Memorandum in Support of Motion to Strike)(Hall, Brady) Modified on 6/22/2015 − Exhibit 30 (1 DVD) received by the Clerk's Office and is on the shelf in the file room (st).
255 AFFIDAVIT of Beth Geagan re 254 MOTION to Strike 243 MOTION for Summary Judgment , 245 Supplement,, 246 Supplement,, 250 Sealed Document, 244 Supplement,,, 247 Supplement,,, Motion to Strike Declaration of Scott Jones filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Hall, Brady) Modified on 6/22/2015 − Exhibit 30 (1 DVD) received by the Clerk's Office and is on the shelf in the file room(st).
256 DECLARATION of Counsel Brady J. Hall re 254 MOTION to Strike 243 MOTION for Summary Judgment , 245 Supplement,, 246 Supplement,, 250 Sealed Document, 244 Supplement,,, 247 Supplement,,, Motion to Strike Declaration of Scott Jones filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments:

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 40 of 46

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# 1 Ex. 1, # 2 Ex. 2, # 3 Ex. 3, # 4 Ex. 4)(Hall, Brady)
257 RESPONSE to Motion re 243 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 6/12/2015. (Attachments: # 1 Statement of Material Facts, # 2 Affidavit of Blake Slater, # 3 Affidavit of Jacob Lang, # 4 2nd Supp Aff of Jayne Sorrels, # 5 Supp Aff of Debbie Allen)(Hall, Brady)
258 RESPONSE to Motion re 229 MOTION for Summary Judgment filed by Robert Anderson, Robert Martin. Replies due by 6/12/2015. (Attachments: # 1 Plaintiffs' Statement of Disputed Material Facts, # 2 Declaration of Counsel Scott Jones, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18, # 21 Exhibit 19, # 22 Exhibit 20, # 23 Exhibit 21, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 24, # 27 Exhibit 25, # 28 Exhibit 26, # 29 Exhibit 27, # 30 Exhibit 28, # 31 Exhibit 29, # 32 Exhibit 30, # 33 Exhibit 31, # 34 Exhibit 32, # 35 Exhibit 33, # 36 Exhibit 34, # 37 Exhibit 35, # 38 Exhibit 36)(Jones, Scott)
259 Sealed Document Re: 258 Response to Motion,,, (Exhibits 1, 2, 5, & 18). (Attachments: # 1 Exhibit 2, # 2 Exhibit 5, # 3 Exhibit 18)(Jones, Scott)
260 AFFIDAVIT in Opposition by Katherine Cheng re 229 MOTION for Summary Judgment −− Declaration of Counsel Katherine Cheng [Response to Dkt. 229; Supplement to Dkts. 258, 259] filed by Robert Anderson, Robert Martin. Replies due by 6/12/2015. (Attachments: # 1 Exhibit A)(Cheng, Katherine) Modified on 5/27/2015 to link to 258 and 259 (jp).
261 CERTIFICATE OF SERVICE by Robert Anderson, Robert Martin re 259 Sealed Document (Cheng, Katherine)
262 DOCKET TEXT NOTICE of Hearing on Motion 229 MOTION for Summary Judgment , 243 MOTION for Summary Judgment : Motion Hearing set for 8/20/2015 09:30 AM (Mountain Time)in Boise − Courtroom 7 before Judge Ronald E. Bush. (lc)
263 Second MOTION to Strike 258 Response to Motion,,, Motion to Strike Declaration of Counsel Scott Jones Brady James Hall appearing for Defendants Boise Police Department, City of Boise, Idaho, Michael Masterson. Responses due by 7/9/2015 (Attachments: # 1 Memorandum in Support)(Hall, Brady)
264 REPLY to Response to Motion re 229 MOTION for Summary Judgment Reply Brief in Support of City of Boise's Motion for Dispositive Relief filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Hall, Brady)
265 DECLARATION of Counsel Brady J. Hall re 264 Reply to Response to Motion filed by Boise Police Department, City of Boise, Idaho, Michael Masterson . (Attachments: # 1 Exhibit Ex. 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4)(Hall, Brady)
266 REPLY to Response to Motion re 243 MOTION for Summary Judgment filed by Robert Anderson, Robert Martin.(Jones, Scott)
267 SEALED REPLY to Response to Motion re 243 MOTION for Summary Judgment filed by Robert Anderson, Robert Martin.(Jones, Scott)
268 MOTION to Strike 257 Response to Motion, Scott C Jones appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 7/9/2015 (Attachments: # 1 Memorandum in Support)(Jones, Scott)
269 RESPONSE to Motion re 254 MOTION to Strike 243 MOTION for Summary Judgment , 245 Supplement,, 246 Supplement,, 250 Sealed Document, 244 Supplement,,, 247 Supplement,,, Motion to Strike Declaration of Scott Jones filed by Robert Anderson, Robert Martin. Replies due by 7/9/2015. (Attachments: # 1 Declaration of Counsel Scott Jones, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 41 of 46

06/19/2015 07/09/2015
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Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27 − Part 1, # 29 Exhibit 27 − Part 2, # 30 Exhibit 27 − Part 3, # 31 Exhibit 27 − Part 4, # 32 Exhibit 27 − Part 5, # 33 Exhibit 27 − Part 6, # 34 Exhibit 28, # 35 Exhibit 29, # 36 Exhibit 30, # 37 Exhibit 31, # 38 Exhibit 32, # 39 Exhibit 33, # 40 Exhibit 34, # 41 Exhibit 35, # 42 Exhibit 36 − Part 1, # 43 Exhibit 36 − Part 2)(Jones, Scott)
270 Sealed Document Re: 269 Response to Motion,,,,, (Exhibits 4, 5, 6, 21, 22, 31). (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 21, # 4 Exhibit 22, # 5 Exhibit 31)(Jones, Scott)
271 RESPONSE to Motion re 263 Second MOTION to Strike 258 Response to Motion,,, Motion to Strike Declaration of Counsel Scott Jones filed by Robert Anderson, Robert Martin. Replies due by 7/27/2015. (Attachments: # 1 Declaration of Counsel Scott Jones, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9 − Part 1, # 11 Exhibit 9 − Part 2, # 12 Exhibit 9 − Part 3, # 13 Exhibit 10)(Jones, Scott)
272 RESPONSE to Motion re 268 MOTION to Strike 257 Response to Motion, filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 7/27/2015.(Hall, Brady)
273 REPLY to Response to Motion re 254 MOTION to Strike 243 MOTION for Summary Judgment , 245 Supplement,, 246 Supplement,, 250 Sealed Document, 244 Supplement,,, 247 Supplement,,, Motion to Strike Declaration of Scott Jones filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Hall, Brady)
274 REPLY to Response to Motion re 268 MOTION to Strike 257 Response to Motion, filed by Robert Anderson, Robert Martin. (Attachments: # 1 Declaration of Counsel Scott Jones, # 2 Exhibit 1, # 3 Exhibit 2)(Jones, Scott)
275 REPLY to Response to Motion re 263 Second MOTION to Strike 258 Response to Motion,,, Motion to Strike Declaration of Counsel Scott Jones filed by Boise Police Department, City of Boise, Idaho, Michael Masterson.(Hall, Brady)
276 MEMORANDUM/BRIEF filed by United States Department of Justice Statement of Interest. (Brett, Sharon)
277 DOCKET ENTRY ORDER requiring Defendants to respond to the United States' Statement of Interest (Dkt. 276), on or before August 17, 2015. Defendants' response shall indicate whether whether (a) they contest the United States' participation in this matter; and (b) even if not, whether they seek to respond to the Statement of Interest. Additionally, the United States shall file a notice indicating whether it seeks to participate in the oral argument set for August 20, 2015. The United States' notice is due on or before August 17, 2015. Signed by Judge Ronald E. Bush. ((kb)
Set Deadlines/Hearings: Defendants to respond to USA's Statement of Interest by 8/17/2015. USA to file notice by 8/17/2015. (Per Docket Entry Order, dkt #277)(st)
278 NOTICE by United States of America Regarding Oral Argument (Brett, Sharon)
279 ORDER GRANTING MOTION TO WITHDRAW granting 252 Motion to Withdraw as Attorney. Attorney Marguerite Sullivan terminated. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 08/13/2015)
280 ORDER GRANTING MOTION TO WITHDRAW granting 253 Motion to Withdraw as Attorney. Attorney Daniel I Levy terminated. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 08/13/2015)
281 RESPONSE re 276 Memorandum/Brief (generic) filed by Boise Police Department, City of Boise, Idaho, Michael Masterson Objection and Response to United States' Amicus Brief. (Hall, Brady)
282 DOCKET ENTRY ORDER setting oral argument schedule for the August 20, 2015 hearing. The Court will first hear argument on the standing issue: Defendants shall present first; each side will have 20 minutes total for argument on this issue; and Defendants may reserve some of their time for reply. The Court will then consider the

Case 1:09-cv-540 Document <docnum> Filed <datefiled> Page 42 of 46

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other issues raised on summary judgment: Plaintiffs shall present first; each side will have 30 minutes total for argument; and Plaintiffs may reserve some of their time for reply. Signed by Judge Ronald E. Bush. ((kb)
283 MOTION for Leave to File Supplemental Authority Scott C Jones appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 9/14/2015 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Jones, Scott)
284 ORDER RE: STATEMENT OF INTEREST. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
285 Minute Entry for proceedings held before Judge Ronald E. Bush: Motion Hearing held on 8/20/2015 re 243 MOTION for Summary Judgment filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey, 229 MOTION for Summary Judgment filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Motion re: Protective Order as addressed in Court due 9/2/15, any response due 9/9/15. (Court Reporter/ESR L. Case.) Audio File Location Boise − Courtroom 7. (lc)
286 ORDER. IT IS HEREBY ORDERED: Plaintiffs' Motion for Sanctions 208 is DENIED. Defendants' Motion to Dismiss 188 is GRANTED. Plaintiffs Janet Bell,Pamela Hawkes, Basil Humphrey, and Lawrence Smith are DISMISSED from this case. Defendants Boise Police Department the Boise City Police Chief7 also are DISMISSED from this case. Plaintiffs' Motion to Modify the Case Management Order 196 is GRANTED, in part, to allow Plaintiffs to depose Jennifer Otto. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 08/24/2015)
287 MOTION for Leave to File Amicus Brief and Amicus Brief by Movant John Ryskamp. Responses due by 9/18/2015 (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6) (km) (Entered: 08/26/2015)
288 MOTION Regarding Summary Judgment Documents Filed Under Seal Scott C Jones appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 9/28/2015 (Attachments: # 1 Declaration of Counsel Scott Jones, # 2 Replacement Document No. 1, # 3 Replacement Document No. 2, # 4 Replacement Document No. 3, # 5 Replacement Document No. 4, # 6 Replacement Document No. 5, # 7 Replacement Document No. 6, # 8 Replacement Document No. 7, # 9 Replacement Document No. 8, # 10 Replacement Document No. 9, # 11 Replacement Document No. 10, # 12 Replacement Document No. 11, # 13 Replacement Document No. 12, # 14 Replacement Document No. 13, # 15 Replacement Document No. 14)(Jones, Scott)
289 MOTION for Leave to Identify Record Citations Scott C Jones appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 9/28/2015 (Jones, Scott)
290 RESPONSE to Motion re 287 MOTION to File Amicus Brief City of Boise's Response to John Ryskamp's Motion for Leave to File Amicus Brief and Amicus Brief filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 9/28/2015.(Hall, Brady)
291 RESPONSE to Motion re 288 MOTION Regarding Summary Judgment Documents Filed Under Seal filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 9/28/2015.(Hall, Brady)
292 REPLY to Response re 287 MOTION to File Amicus Brief filed by John Ryskamp. (km) (Entered: 09/14/2015)
293 MEMORANDUM in Opposition re 283 MOTION for Leave to File Supplemental Authority filed by Boise Police Department, City of Boise, Idaho, Michael Masterson. Replies due by 10/1/2015.(Hall, Brady)
294 RESPONSE to Motion re 287 MOTION to File Amicus Brief filed by Robert Anderson, Robert Martin. Replies due by 10/5/2015.(Jones, Scott)
295 SUPPLEMENT to Reply to Response, by Movant John Ryskamp re 292 Reply to Response to Motion. (km)

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296 MOTION for Leave to File the Declaration of Plaintiff Robert Anderson Scott C Jones appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 10/13/2015 (Attachments: # 1 Declaration of Robert Anderson)(Jones, Scott)
297 REPLY to Plaintiffs' Response re 294 Response re 287 MOTION to File Amicus Brief filed by John Ryskamp.(st) (Entered: 09/23/2015)
298 MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED: Defendant's Motion for Dispositive Relief 229 is GRANTED; Plaintiffs' Motion for Summary Judgment 243 is DENIED. Defendant's Motions to Strike 254 & 263 are DENIED as MOOT. Plaintiffs' Motion to Strike 268 is DENIED as MOOT. Plaintiffs Motion for Leave to File Supplemental Authority 283 is GRANTED. Plaintiffs' Motion for Leave to Identify Record Citations 289 is GRANTED. Plaintiffs' Motion seeking permission to file the Robert Anderson Declaration 296 is GRANTED. A separate judgment will be filed contemporaneously with this Order. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 09/29/2015)
299 ORDER ON MOTION TO FILE AMICUS BRIEF denying 287 Motion to file Amicus Brief. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 09/29/2015)
300 JUDGMENT. In accordance with the Memorandum Decision and Order filed with this Judgment, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this action is DISMISSED in its entirety. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st) (Entered: 09/29/2015)
301 NOTICE OF APPEAL (15−35845) as to 298 Order, Memorandum Decision, Terminate Motions, 152 Order on Motion for Summary Judgment, 300 Judgment, by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith. Filing fee $ 505, receipt number 0976−1365500. (Notice sent to Court Reporter & 9th Cir) (Jones, Scott) Modified on 10/29/2015 to add appeal number (st).
302 USCA Case Number 15−35845 for 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey. (st)
303 USCA Time Schedule Order (15−35845) as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey. (Notice sent by e−mail to Court Reporter) (st)
304 Transcript filed for Motion Hearing held on 8/20/2015 before Judge Ronald E. Bush re 301 Notice of Appeal. Court Reporter/Transcriber Canyon Transcription, Telephone number 208−454−1010. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/23/2015. Redacted Transcript Deadline set for 12/3/2015. Release of Transcript Restriction set for 2/1/2016. (st) (Entered: 11/02/2015)
305 Notice of Filing of Official Transcript (st)
306 TRANSCRIPT REQUEST by Robert Anderson, Janet F. Bell, Pamela Hawkes, Basil E. Humphrey, Robert Martin, Lawerence Lee Smith for proceedings held on 11/14/2013; 08/20/2015 before Judge Ronald E. Bush, re 301 Notice of Appeal, (Notice sent by e−mail to Court Reporter) Transcript due by 12/28/2015. (Jones, Scott)
307 RETURN MAIL undelivered as to Tulin Ozdeger re: 305 Notice of Filing of Official Transcript (st) (Entered: 12/02/2015)
308 RETURN MAIL undelivered as to Karen E Cunningham re: 305 Notice of Filing of Official Transcript (st) (Entered: 12/02/2015)
309 ORDER RE: DOCUMENTS FILED UNDER SEAL. The Clerk of the Court is hereby instructed to notify the Circuit Clerk of the Ninth Circuit Court of Appeals that a motion 288 involving "substantial issues" remains pending in this Court. The

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undersigned will await instructions from the Ninth Circuit before taking any further action on this motion. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
310 ORDER of USCA as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey. It appears that the district court may rule on a pending matter during the pendency of this appeal without the court of appeals first issuing a limited remand. Briefing remains suspended pending further court order. (cjs)
311 NOTICE by Robert Anderson, Robert Martin of Withdrawal as Counsel and Certificate of Service (Cheng, Katherine)
NOTICE TO COURT that counsel Katherine M. Cheng wishes to no longer be noticed electronically on this case as of the date of this notice. (Cheng, Katherine)
312 ORDER of USCA (15−35845) as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey (st) (Entered: 03/02/2017)
313 ORDER RE: DOCUMENTS FILED UNDER SEAL granting in part and denying in part 288 Motion. The Clerk of the Court is instructed to UNSEAL the documents filed at Dockets 248, 249, 250, 250−1, 250−2, 259, 259−1, 267, 270, 270−1, 270−2, and 270−3. The medical records contained at Dockets 250−3, 250−4, 250−5, 250−6, 250−7, and 270−5, shall remain SEALED, as shall deposition testimony of former Plaintiffs contained at Dockets 259−2, 259−3, and 270−4. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
314 NOTICE by Robert Anderson, Robert Martin of Withdrawal of Greer Donley as Counsel and Certificate of Service (Jones, Scott)
NOTICE TO COURT that counsel Greer Donley wishes to no longer be noticed electronically on this case as of the date of this notice. (Jones, Scott)
315 USCA Opinion (15−35845) as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey (st) (Entered: 09/06/2018)
316 MOTION for Taxation of Costs Scott C Jones appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 10/9/2018 (Jones, Scott)
317 DECLARATION of Scott C. Jones re 316 MOTION for Taxation of Costs filed by Robert Anderson, Robert Martin . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Jones, Scott)
318 ORDER of USCA as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey (cjs)
319 ORDER of USCA as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey. Defendant−Appellee's unopposed motion for an extension of time to augment its Petition for Panel Rehearing and Rehearing En Banc is GRANTED. Both parties shall file responses no later than 11/13/18. (jp) (Entered: 10/12/2018)
320 ORDER and AMENDED OPINION of USCA (15−35845) as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey (alw) (Entered: 04/09/2019)
321 MANDATE of USCA (19−35845) as to 301 Notice of Appeal, filed by Lawerence Lee Smith, Robert Martin, Robert Anderson, Pamela Hawkes, Janet F. Bell, Basil E. Humphrey (alw) (Entered: 04/15/2019)
322 Letter from Supreme Court of the United States. The application for an extension of time within which to file a petition for a writ of certiorari in the above entitled case has been presented to Justice Kagan, who on June 4, 2019, extended the time to and including August 29, 2019.(jp) (Entered: 06/20/2019)

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08/26/2019 12/16/2019 12/16/2019 01/09/2020
01/10/2020
01/13/2020 01/13/2020 01/14/2020
01/15/2020 01/21/2020 01/31/2020 01/31/2020 01/31/2020 02/18/2020

323 Letter from Supreme Court of the United States. The petition for a writ of certiorari in the above entitled case was filed on August 22, 2019 and placed on the docket August 26, 2019 as No. 19−247. (ckh) (Entered: 08/27/2019)
324 DOCKET TEXT NOTICE of Hearing: Telephonic Status Conference set for 1/15/2020 10:00 AM (MOUNTAIN TIME) in Telephonic Hearing − Boise Courtroom 7 before Judge Ronald E. Bush. * Mr. Jones shall initiate this Conference call connecting all parties and reaching the Court at 208−334−1495.(lc)
325 Letter from Supreme Court of the United States. The petition for a writ of certiorari is denied. (ckh) (Entered: 12/19/2019)
326 DOCKET ENTRY ORDER requiring the parties to file, no later than Monday, January 13, 2020, a short memorandum outlining their position on what issues remain for further resolution in this case following the Ninth Circuit's 320 amended order and opinion issued April 1, 2019, with particular attention also given to the operative pleadings in this case which set out the claims and defenses. The telephonic status conference set for January 15, 2020 will focus on discussing and clarifying the remaining issues and reaching agreement upon the form of a scheduling order for this case going forward. The parties should be prepared to discuss all of such matters at the status conference, including any differences that may exist in their respective positions on what matters remain for resolution in the trial court. Alternatively, the parties may submit a stipulated filing setting out an agreed statement of the remaining issues. Signed by Judge Ronald E. Bush. (kcs)
327 MOTION FOR ADMISSION PRO HAC VICE AND MOTION FOR WAIVER OF FEE by Michael E Bern. Howard A Belodoff appearing for Plaintiffs Robert Anderson, Robert Martin. Responses due by 1/31/2020 (Attachments: # 1 Affidavit Declaration of Howard Belodoff In Support of Motion for Waiver of PHV Fees)(Belodoff, Howard)
328 MEMORANDUM/BRIEF re 326 Order,,, filed by City of Boise, Idaho . (Hall, Brady)
329 MEMORANDUM/BRIEF re 326 Order,,, filed by Robert Martin Regarding Issue Remaining For Resolution. (Belodoff, Howard)
330 DOCKET ENTRY ORDER granting 327 Motion for Admission Pro Hac Vice and Motion for Waiver of Fee of attorney Michael E Bern for Plaintiffs Robert Anderson and Robert Martin. Because the attorney applicant is acting in a pro bono capacity, there is good cause to grant the motion for waiver of fee and IT IS HEREBY ORDERED that the pro hac vice fee is waived as to attorney Michael E Bern. Per General Order 206, out−of−state counsel shall immediately register for ECF. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ckh)
331 Minute Entry for proceedings held before Judge Ronald E. Bush: Status Conference held on 1/15/2020. Court shall enter an order which governs. (Court Reporter/ESR lc.) Audio File Location Boise − Courtroom 7. (lc)
332 DOCKET ENTRY ORDER requiring each party to file, no later than January 31, 2020, a memorandum no more than 10 pages long describing the party's position on whether dismissed Plaintiff Pamela Hawkes remains a party to the case, after 320 the remand from the Ninth Circuit. Signed by Judge Ronald E. Bush. (kcs)
333 NOTICE of Appearance by Brady James Hall on behalf of City of Boise, Idaho (Hall, Brady)
334 MEMORANDUM/BRIEF re 332 Order, filed by City of Boise, Idaho . (Attachments: # 1 Declaration of Brady Hall in Support of City of Boise's Memo, # 2 Exhibit A to Declaration of Brady Hall)(Hall, Brady)
335 MEMORANDUM/BRIEF re 332 Order, filed by Robert Martin Issue Remaining For Resolution on Pamela Hawkes. (Belodoff, Howard)
336 CASE MANAGEMENT DECISION AND ORDER, POST APPEAL. IT IS HEREBY ORDERED as follows: Plaintiff Pamela S. Hawkes remains a party to the case with respect to her claim for retrospective relief. Plaintiff's Motion for Taxation of Costs (Dkt. 316 ) is DENIED AS MOOT without prejudice. Plaintiffs are ordered to file a

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02/19/2020 03/10/2020 03/24/2020 03/24/2020 04/06/2020 04/07/2020 05/06/2020 05/12/2020 05/12/2020 05/13/2020
05/15/2020
05/26/2020

Third Amended Complaint by March 10, 2020, as described above. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)
337 DOCKET TEXT NOTICE of Hearing: Telephonic Scheduling Conference set for 4/15/2020 03:00 PM (Mountain) in Telephonic Hearing − Boise Courtroom 7 before Judge Ronald E. Bush. * Mr. Hall shall initiate this Conference call, connecting the Court at 208−334−1495.(lc)
338 AMENDED COMPLAINT (THIRD) against City of Boise, Idaho, filed by Robert Anderson, Robert Martin.(Bern, Michael)
339 STIPULATION to Extend Deadline to File Answer to Third Amended Complaint by City of Boise, Idaho. (Hall, Brady)
340 DOCKET ENTRY ORDER adopting 339 Joint Motion and Stipulation to Extend Answer Deadline. Good cause appearing for the extension, Defendants' deadline to file an answer to 338 Plaintiffs' Third Amended Complaint is now April 7, 2020. Signed by Judge Ronald E. Bush. (kcs)
341 DOCKET TEXT AMENDED NOTICE of Hearing: The 4/15/20 TSC is VACATED and reset. Telephonic Scheduling Conference is reset for 5/12/2020 09:00 AM (Mountain Time) in Telephonic Hearing − Boise, before Judge Ronald E. Bush. * Mr. Hall shall initiate the Conference Call, connecting all parties to 208−334−1495.(lc)
342 ANSWER to 338 Amended Complaint by City of Boise, Idaho.(Hall, Brady)
343 DOCKET TEXT NOTICE: All Counsel please call into the Court's Teleconference Number for next week's TSC on 5/12/20. 1−888−684−8852, Access Code is 2777014, Security Code is 2222.*Please remember to mute your phone when not speaking and preference is not to use speaker phones. (Mr. Hall no need to initiate this call). (lc)
344 Minute Entry for proceedings held before Judge Ronald E. Bush: Status Conference held on 5/12/2020. Court shall enter an Order setting forth deadlines in this matter. The next TSC is 7/15/20 at 9:30 am, Mtn. w/ Mr. Brady initiating the Call to 208−334−1495. (Court Reporter/ESR lc.) Audio File Location Other. (lc)
346 DOCKET TEXT NOTICE of Hearing: Telephonic Status Conference set for 7/15/2020 09:00 AM in Telephonic Hearing − Boise, before Judge Ronald E. Bush. (for calendar entry)(lc) (Entered: 05/14/2020)
345 DOCKET ENTRY ORDER: As stated on the record during the Court's telephonic status conference with the parties on May 12, 2020, the Court will not stay this case pending further discovery. The parties are ordered to confer regarding any targeted discovery necessary at this stage of the case and to file, by May 26, 2020, a joint discovery plan proposing the subject, form, and deadlines of any remaining discovery. The parties are encouraged to propose that all discovery end by July 1, 2020. The Court will independently attempt to coordinate a judicial settlement conference in this case at the earliest possible date. The Court will decide whether to allow additional dispositive motions at a later date. Signed by Judge Ronald E. Bush. (kcs)
347 Notice of Filing of Official Transcript of Proceedings held on 05/12/20 before Judge Ronald E. Bush. Court Reporter/Transcriber Tamara I. Hohenleitner, Email tammy_hohenleitner@id.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. This transcript is not available to the general public and as such is sealed until release of transcript restriction re 344 Terminate Hearings,, Status Conference,. Redaction Request due 6/5/2020. Redacted Transcript Deadline set for 6/15/2020. Release of Transcript Restriction set for 8/13/2020. (th)
348 DISCOVERY PLAN by Robert Anderson, Pamela Hawkes, Robert Martin . (Bern, Michael)