FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD JONES; PATRICIA VINSON; 

GEORGE VINSON; THOMAS CASH;

STANLEY BARGER; ROBERT LEE

PURRIE, No. 04-55324

Plaintiffs-Appellants, D.C. No.  v. CV-03-01142-ER

CITY OF LOS ANGELES; WILLIAM OPINION

BRATTON, Chief; CHARLES BECK,

Captain, in their official capacity,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Edward Rafeedie, District Judge, Presiding

Argued and Submitted

December 6, 2005—Pasadena, California

Filed April 14, 2006

Before: Pamela Ann Rymer and Kim McLane Wardlaw,

Circuit Judges, and Edward C. Reed, Jr.,* District Judge.

Opinion by Judge Wardlaw;

Dissent by Judge Rymer

*The Honorable Edward C. Reed, Jr., Senior United States District

Judge for the District of Nevada, sitting by designation. 

4417
COUNSEL

Ben Wizner, Peter Eliasberg, and Mark D. Rosenbaum,

ACLU Foundation of Southern California, Los Angeles, California; Carol A. Sobel, Law Offices of Carol A. Sobel, Santa

Monica, California; and Adam B. Wolf, Los Angeles, California, for the plaintiffs-appellants. 

Amy Jo Field, Deputy City Attorney, Los Angeles, California,

for the defendants-appellees.

JONES v. CITY OF LOS ANGELES 4421
OPINION

WARDLAW, Circuit Judge: 

Six homeless individuals, unable to obtain shelter on the

night each was cited or arrested, filed this Eighth Amendment

challenge to the enforcement of a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public

streets and sidewalks at all times and in all places within Los

Angeles’s city limits. Appellants seek limited injunctive relief

from enforcement of the ordinance during nighttime hours,

i.e., between 9:00 p.m. and 6:30 a.m., or at any time against

the temporarily infirm or permanently disabled. We must

decide whether the Eighth Amendment right to be free from

cruel and unusual punishment prohibits enforcement of that

law as applied to homeless individuals involuntarily sitting,

lying, or sleeping on the street due to the unavailability of

shelter in Los Angeles. 

I. Facts and Procedural Background

The facts underlying this appeal are largely undisputed.

Edward Jones, Patricia Vinson, George Vinson, Thomas

Cash, Stanley Barger, and Robert Lee Purrie (“Appellants”)

are homeless individuals who live on the streets of Los Angeles’s Skid Row district. Appellees are the City of Los Angeles, Los Angeles Police Department (“L.A.P.D.”) Chief

William Bratton, and Captain Charles Beck (“Appellees” or

“the City”). Federal law defines the term “homeless individual” to include 

(1) an individual who lacks a fixed, regular, and

adequate nighttime residence; and 

(2) an individual who has a primary nighttime residence that is— 

(A) a supervised publicly or privately operated

shelter designed to provide temporary living accom4422 JONES v. CITY OF LOS ANGELES
modations (including welfare hotels, congregate

shelters, and transitional housing for the mentally

ill); 

(B) an institution that provides a temporary residence for individuals intended to be institutionalized;

or 

(C) a public or private place not designed for, or

ordinarily used as, a regular sleeping accommodation for human beings. 

Stewart B. McKinney Homeless Assistance Act of 1987

§ 103(a), 42 U.S.C. § 11302(a) (2000). Appellants are six of

the more than 80,000 homeless individuals in Los Angeles

County on any given night. See L.A. Homeless Servs. Auth.,

Los Angeles Continuum of Care, Exhibit 1 Narrative, at 2-17

(2001); see also Patrick Burns et al., Econ. Roundtable,

Homeless in LA: A Working Paper for the 10-Year Plan To

End Homelessness in Los Angeles County (2003) (estimating

that more than 253,000 individuals were homeless in Los

Angeles County at some point during 2002). 

The term “Skid Row” derives from the lumber industry

practice of building a road or track made of logs laid crosswise over which other logs were slid. Christine Ammer, The

American Heritage Dictionary of Idioms 382 (paperback ed.

2003). By the 1930s, the term was used to describe the area

of town frequented by loggers and densely populated with

bars and brothels. Id. Beginning around the end of the nineteenth century, the area now known as Los Angeles’s Skid

Row became home to a transient population of seasonal laborers as residential hotels began to develop. See Mayor’s Citizens’ Task Force on Cent. City East, To Build a Community

5 (1988). For decades Skid Row has been home for “the down

and out, the drifters, the unemployed, and the chronic alcoholic[s]” of Los Angeles. Id. Covering fifty city blocks immediately east of downtown Los Angeles, Skid Row is bordered

JONES v. CITY OF LOS ANGELES 4423
by Third Street to the north, Seventh Street to the south, Alameda Street to the east, and Main Street to the west. 

Los Angeles’s Skid Row has the highest concentration of

homeless individuals in the United States. Charlie LeDuff, In

Los Angeles, Skid Row Resists an Upgrade, N.Y. Times, July

15, 2003, at A1. According to the declaration of Michael

Alvidrez, a manager of single-room-occupancy (“SRO”)

hotels in Skid Row owned by the Skid Row Housing Trust,

since the mid-1970s Los Angeles has chosen to centralize

homeless services in Skid Row. See also Edward G. Goetz,

Land Use and Homeless Policy in Los Angeles, 16 Int’l. J.

Urb. & Regional Res. 540, 543 (1992) (discussing the City’s

long-standing “policy of concentrating and containing the

homeless in the Skid Row area”). The area is now largely

comprised of SRO hotels (multi-unit housing for very low

income persons typically consisting of a single room with

shared bathroom), shelters, and other facilities for the homeless. 

Skid Row is a place of desperate poverty, drug use, and

crime, where Porta-Potties serve as sleeping quarters and

houses of prostitution. Steve Lopez, A Corner Where L.A.

Hits Rock Bottom, L.A. Times, Oct. 17, 2005, at A1.

Recently, it has been reported that local hospitals and law

enforcement agencies from nearby suburban areas have been

caught “dumping” homeless individuals in Skid Row upon

their release. Cara Mia DiMassa & Richard Winton, Dumping

of Homeless Suspected Downtown, L.A. Times, Sept. 23,

2005, at A1. This led Los Angeles Mayor Antonio Villaraigosa to order an investigation into the phenomenon in September 2005. Cara Mia DiMassa & Richard Fausset, Mayor

Orders Probe of Skid Row Dumping, L.A. Times, Sept. 27,

2005, at B1. L.A.P.D. Chief William Bratton, insisting that

the Department does not target the homeless but only people

who violate city ordinances (presumably including the ordinance at issue), has stated: 

4424 JONES v. CITY OF LOS ANGELES
“If the behavior is aberrant, in the sense that it

breaks the law, then there are city ordinances. . . .

You arrest them, prosecute them. Put them in jail.

And if they do it again, you arrest them, prosecute

them, and put them in jail. It’s that simple.” 

Cara Mia DiMassa & Stuart Pfeifer, 2 Strategies on Policing

Homeless, L.A. Times, Oct. 6, 2005, at A1 [hereinafter

DiMassa, Policing Homeless] (omission in original) (quoting

Chief Bratton). This has not always been City policy. The

ordinance at issue was adopted in 1968. See L.A., Cal., Ordinance 137,269 (Sept. 11, 1968). In the late 1980s, James K.

Hahn, who served as Los Angeles City Attorney from 1985

to 2001 and subsequently as Mayor, refused to prosecute the

homeless for sleeping in public unless the City provided them

with an alternative to the streets. Frederick M. Muir, No Place

Like Home: A Year After Camp Was Closed, Despair Still

Reigns on Skid Row, L.A. Times, Sept. 25, 1988, § 2 (Metro),

at 1. 

For the approximately 11,000-12,000 homeless individuals

in Skid Row, space is available in SRO hotels, shelters, and

other temporary or transitional housing for only 9000 to

10,000, leaving more than 1000 people unable to find shelter

each night. See Mayor’s Citizens’ Task Force, supra, at 5. In

the County as a whole, there are almost 50,000 more homeless people than available beds. See L.A. Homeless Servs.

Auth., supra, at 2-14. In 1999, the fair market rent for an SRO

room in Los Angeles was $379 per month. L.A. Housing Crisis Task Force, In Short Supply 6 (2000). Yet the monthly

welfare stipend for single adults in Los Angeles County is

only $221. See L.A. Homeless Servs. Auth., supra, at 2-10.

Wait-lists for public housing and for housing assistance

vouchers in Los Angeles are three- to ten-years long. See The

U.S. Conference of Mayors, A Status Report on Hunger and

Homelessness in America’s Cities 101, 105 (2002) [hereinafter Homelessness Report];1

 L.A. Housing Crisis Task Force,

supra, at 7. 

1

It is unclear on what basis the dissent asserts that this report “does not

indicate that Los Angeles was among the cities surveyed,” or that it “is the

JONES v. CITY OF LOS ANGELES 4425
The result, in City officials’ own words, is that “ ‘[t]he gap

between the homeless population needing a shelter bed and

the inventory of shelter beds is severely large.’ ” Homelessness Report, supra, at 80. As Los Angeles’s homeless population has grown, see id. at 109 (estimating annualized growth

of ten percent in Los Angeles’s homeless population in the

years up to and including 2003), the availability of lowincome housing in Skid Row has shrunk, according to the

declaration of Alice Callaghan, director of a Skid Row community center and board member of the Skid Row Housing

Trust. According to Callaghan’s declaration, at night in Skid

Row, SRO hotels, shelters, and other temporary or transitional

housing are the only alternatives to sleeping on the street; during the day, two small parks are open to the public. Thus, for

many in Skid Row without the resources or luck to obtain

shelter, sidewalks are the only place to be. 

As will be discussed below, Appellants’ declarations demonstrate that they are not on the streets of Skid Row by

informed choice. In addition, the Institute for the Study of

Homelessness and Poverty reports that homelessness results

from mental illness, substance abuse, domestic violence, lowpaying jobs, and, most significantly, the chronic lack of

affordable housing. Inst. for the Study of Homelessness and

Poverty, “Who Is Homeless in Los Angeles?” 3 (2000). It also

reports that between 33% and 50% of the homeless in Los

Angeles are mentally ill, and 76% percent of homeless adults

in 1990 had been employed for some or all of the two years

prior to becoming homeless. Id. at 2; see also Grace R. Dyrness et al., Crisis on the Streets: Homeless Women and Children in Los Angeles 14 (2003) (noting that approximately

only study in the record.” Throughout the report, including on page 96 and

on the final page, Los Angeles is named as one of the twenty-five surveyed cities. The record includes more than a half dozen public reports

Appellants filed in support of their motion for summary judgment, without

objection. 

4426 JONES v. CITY OF LOS ANGELES
14% of homeless individuals in Los Angeles are victims of

domestic violence). 

Against this background, the City asserts the constitutionality of enforcing Los Angeles Municipal Code section 41.18(d)

against those involuntarily on the streets during nighttime

hours, such as Appellants. It provides: 

No person shall sit, lie or sleep in or upon any

street, sidewalk or other public way. 

The provisions of this subsection shall not apply

to persons sitting on the curb portion of any sidewalk

or street while attending or viewing any parade permitted under the provisions of Section 103.111 of

Article 2, Chapter X of this Code; nor shall the provisions of this subsection supply [sic] to persons sitting upon benches or other seating facilities provided

for such purpose by municipal authority by this

Code. 

L.A., Cal., Mun. Code § 41.18(d) (2005). A violation of section 41.18(d) is punishable by a fine of up to $1000 and/or

imprisonment of up to six months. Id. § 11.00(m). 

Section 41.18(d) is one of the most restrictive municipal

laws regulating public spaces in the United States. The City

can secure a conviction under the ordinance against anyone

who merely sits, lies, or sleeps in a public way at any time of

day. Other cities’ ordinances similarly directed at the homeless provide ways to avoid criminalizing the status of homelessness by making an element of the crime some conduct in

combination with sitting, lying, or sleeping in a state of homelessness. For example, Las Vegas prohibits standing or lying

in a public way only when it obstructs pedestrian or vehicular

traffic. See, e.g., Las Vegas, Nev., Mun. Code § 10.47.020

(2005) (“It is unlawful to intentionally obstruct pedestrian or

vehicular traffic . . . .”). Others, such as Portland, prohibit

JONES v. CITY OF LOS ANGELES 4427
“camping” in or upon any public property or public right of

way. See, e.g., Portland, Or., Mun. Code §§ 14A.50.020, .030

(2006) (prohibiting obstruction of public sidewalks in a designated area or camping on public property). Still others contain

safe harbor provisions such as limiting the hours of enforcement. See, e.g., Seattle, Wash., Mun. Code § 15.48.040 (2005)

(“No person shall sit or lie down upon a public sidewalk . . .

during the hours between seven (7:00) a.m. and nine (9:00)

p.m. in the following zones . . . .”); Tucson, Ariz., Mun. Code

§ 11-36.2(a) (2005) (same, except prohibition extended to

10:00 p.m.); Houston, Tex., Mun. Code § 40-352(a) (2006)

(same, except prohibition extended to 11:00 p.m.). Other cities include as a required element sitting, lying, or sleeping in

clearly defined and limited zones. See, e.g., Philadelphia, Pa.,

Mun. Code § 10-611(1)(b)-(c), (2)(g)-(h) (2005) (prohibiting

sitting or lying in certain designated zones only); Reno, Nev.,

Mun. Code § 8.12.015(b) (2005) (similar); Seattle, Wash.,

Mun. Code § 15.48.040 (similar). As a result of the expansive

reach of section 41.18(d), the extreme lack of available shelter

in Los Angeles, and the large homeless population, thousands

of people violate the Los Angeles ordinance every day and

night, and many are arrested, losing what few possessions

they may have.2 Appellants are among them. 

Robert Lee Purrie is in his early sixties. He has lived in the

Skid Row area for four decades. Purrie sleeps on the streets

because he cannot afford a room in an SRO hotel and is often

unable to find an open bed in a shelter. Early in the morning

of December 5, 2002, Purrie declares that he was sleeping on

the sidewalk at Sixth Street and Towne Avenue because he

“had nowhere else to sleep.” At 5:20 a.m., L.A.P.D. officers

cited Purrie for violating section 41.18(d). He could not afford

to pay the resulting fine. 

2During oral argument, the attorney for the City asserted that L.A.P.D.

officers leaflet Skid Row the day before making their section 41.18(d)

sweeps to warn the homeless, and do not cite or arrest people for violating

section 41.18(d) unless there are open beds in homeless shelters at the

time of the violations. No evidence in the record supports these assertions.

4428 JONES v. CITY OF LOS ANGELES
Purrie was sleeping in the same location on January 14,

2003, when police officers woke him early in the morning and

searched, handcuffed, and arrested him pursuant to a warrant

for failing to pay the fine from his earlier citation. The police

removed his property from his tent, broke it down, and threw

all of his property, including the tent, into the street. The officers also removed the property and tents of other homeless

individuals sleeping near Purrie. After spending the night in

jail, Purrie was convicted of violating section 41.18(d), given

a twelve month suspended sentence, and ordered to pay $195

in restitution and attorneys’ fees. Purrie was also ordered to

stay away from the location of his arrest. Upon his release,

Purrie returned to the corner where he had been sleeping on

the night of his arrest to find that all the belongings he had left

behind, including blankets, clothes, cooking utensils, a

hygiene kit, and other personal effects, were gone. 

Stanley Barger suffered a brain injury in a car accident in

1998 and subsequently lost his Social Security Disability

Insurance. His total monthly income consists of food stamps

and $221 in welfare payments. According to Barger’s declaration, he “want[s] to be off the street” but can only rarely

afford shelter. At 5:00 a.m. on December 24, 2002, Barger

was sleeping on the sidewalk at Sixth and Towne when

L.A.P.D. officers arrested him. Barger was jailed, convicted

of violating section 41.18(d), and sentenced to two days time

served. 

When Thomas Cash was cited for violating section

41.18(d), he had not worked for approximately two years

since breaking his foot and losing his job, and had been sleeping on the street or in a Skid Row SRO hotel. Cash suffers

from severe kidney problems, which cause swelling of his

legs and shortness of breath, making it difficult for him to

walk. At approximately noon on January 10, 2003, Cash tired

as he walked to the SRO hotel where he was staying. He was

resting on a tree stump when L.A.P.D. officers cited him. 

JONES v. CITY OF LOS ANGELES 4429
Edward Jones’s wife, Janet, suffers serious physical and

mental afflictions. Edward takes care of her, which limits his

ability to find full-time work, though he has held various

minimum wage jobs. The Joneses receive $375 per month

from the Los Angeles County General Relief program,

enabling them to stay in Skid Row SRO hotels for the first

two weeks of each month. Because shelters separate men and

women, and Janet’s disabilities require Edward to care for

her, the Joneses are forced to sleep on the streets every month

after their General Relief monies run out. At 6:30 a.m. on

November 20, 2002, Edward and Janet Jones were sleeping

on the sidewalk at the corner of Industrial and Alameda

Streets when the L.A.P.D. cited them for violating section

41.18(d). 

Patricia and George Vinson, a married couple, were looking for work and a permanent place to live when they were

cited for violating section 41.18(d). They use their General

Relief payments to stay in motels for part of every month and

try to stay in shelters when their money runs out. On the night

of December 2, 2002, they missed a bus that would have

taken them to a shelter and had to sleep on the sidewalk near

the corner of Hope and Washington Streets instead. At 5:30

a.m. the next morning, L.A.P.D. officers cited the Vinsons for

violating section 41.18(d). 

The record before us includes declarations and supporting

documentation from nearly four dozen other homeless individuals living in Skid Row who have been searched, ordered

to move, cited, arrested, and/or prosecuted for, and in some

cases convicted of, violating section 41.18(d). Many of these

declarants lost much or all of their personal property when

they were arrested. 

On February 19, 2003, Appellants filed a complaint in the

United States District Court for the Central District of California pursuant to 42 U.S.C. § 1983. They seek a permanent

injunction against the City of Los Angeles and L.A.P.D. Chief

4430 JONES v. CITY OF LOS ANGELES
William Bratton and Captain Charles Beck (in their official

capacities), barring them from enforcing section 41.18(d) in

Skid Row between the hours of 9:00 p.m. and 6:30 a.m.

Appellants allege that by enforcing section 41.18(d) twentyfour hours a day against persons with nowhere else to sit, lie,

or sleep, other than on public streets and sidewalks, the City

is criminalizing the status of homelessness in violation of the

Eighth and Fourteenth Amendments to the U.S. Constitution,

and Article I, sections 7 and 17 of the California Constitution,

see Cal. Const. art I, § 7 (guaranteeing due process and equal

protection); id. § 17 (prohibiting cruel and unusual punishment). Appellants abandoned their second claim pursuant to

42 U.S.C. § 1983, alleging violations of a Fourteenth Amendment substantive due process right to treatment for chronic illnesses while in police custody, in the district court. On crossmotions for summary judgment, the district court granted

judgment in favor of the City. Relying heavily on Joyce v.

City and County of San Francisco, 846 F. Supp. 843 (N.D.

Cal. 1994), the district court held that enforcement of the ordinance does not violate the Eighth Amendment because it

penalizes conduct, not status. This appeal timely followed.

II. Standard of Review

The parties dispute the appropriate standard of review.

Appellants argue that the district court’s denial of summary

judgment should be reviewed de novo, while the City argues

that the abuse of discretion standard applies because the district court denied a request for equitable relief. Although we

review a district court’s summary judgment order granting or

denying a permanent injunction for abuse of discretion, Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1079 (9th

Cir. 2004), we review any determination underlying the

court’s decision under the standard applicable to that determination, United States v. Alisal Water Corp., 431 F.3d 643, 654

(9th Cir. 2005). Therefore, we review de novo the district

court’s legal determination that a statute is constitutional,

United States v. Labrada-Bustamante, 428 F.3d 1252, 1262

JONES v. CITY OF LOS ANGELES 4431
(9th Cir. 2005), and we review for clear error the district

court’s findings of fact, Metropolitan Life Ins. Co. v. Parker,

436 F.3d 1109, 1113 (9th Cir. 2006). We also review de novo

the district court’s decision to grant or deny summary judgment. United States v. City of Tacoma, 332 F.3d 574, 578 (9th

Cir. 2003). 

III. Discussion

A. Standing

The City challenges Appellants’ standing for the first time

on appeal. We nevertheless consider this challenge because

the question of standing is jurisdictional and may be raised at

any time by the parties, Laub v. U.S. Dep’t of Interior, 342

F.3d 1080, 1085 (9th Cir. 2003), or sua sponte, see RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir.

2002) (raising issue of standing, but remanding for further

development of the record). We conclude that Appellants

have standing to bring this action. 

The City’s contention that standing requires Appellants to

have been convicted under the ordinance ignores established

standing principles. The City also argues Appellants lack

standing because, after being arrested, jailed, and losing their

belongings, Appellants could theoretically raise a necessity

defense if they were prosecuted. This argument is legally, factually, and realistically untenable.3

3As a practical matter, it is questionable how homeless individuals

would either know that they could assert a necessity defense or have the

wherewithal to hire an attorney who might so advise them, particularly

after being arrested, serving jail time, and losing their belongings. The

argument that at trial a homeless individual would have recourse to a

necessity defense so as to avoid conviction begs the question why the City

arrests homeless individuals during nighttime in the first place, other than

out of indifference or meanness. As the Los Angeles City Attorney has

publicly stated, “ ‘The tragedy of homelessness is compounded by indifference.’ ” Anat Rubin, “Jobs, Not Jails,” Skid Row Protesters Shout at

4432 JONES v. CITY OF LOS ANGELES
[1] Article III of the Constitution requires a plaintiff seeking to invoke the jurisdiction of the federal courts to allege an

actual case or controversy. To satisfy the case or controversy

requirement, the party invoking a court’s jurisdiction must

“show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the

defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” Valley Forge Christian Coll. v. Ams. United for

Separation of Church and State, Inc., 454 U.S. 464, 472

(1982) (citation and internal quotation marks omitted). In a

suit for prospective injunctive relief, a plaintiff is required to

demonstrate a real and immediate threat of future injury. City

of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (holding

that the threat must be “ ‘real and immediate’ ” as opposed to

“ ‘conjectural’ or ‘hypothetical’ ”). The key issue is whether

the plaintiff is “likely to suffer future injury.” Id. at 105; see

also O’Shea v. Littleton, 414 U.S. 488, 496, 498 (1974). 

[2] Where the plaintiff seeks to enjoin criminal law

enforcement activities against him, standing depends on the

plaintiff’s ability to avoid engaging in the illegal conduct in

the future. See Hodgers-Durgin v. de la Vina, 199 F.3d 1037,

1041 (9th Cir. 1999) (en banc) (citing Spencer v. Kemna, 523

U.S. 1, 15 (1998)). The plaintiff need only establish that there

is a reasonable expectation that his conduct will recur, triggering the alleged harm; he need not show that such recurrence

is probable. See Honig v. Doe, 484 U.S. 305, 318 & n.6

(1988); id. at 320 (distinguishing, inter alia, Lyons, 461 U.S.

at 105-06). Avoiding illegal conduct may be impossible when

the underlying criminal statute is unconstitutional. See

Politicos, L.A. Daily J., Feb. 22, 2006, at 1 (quoting the City Attorney).

Yet the National Coalition for the Homeless recently named Los Angeles

one of the twenty “meanest” cities in the United States in its treatment of

the homeless. Nat’l Coal. for the Homeless & Nat’l Law Ctr. on Homelessness & Poverty, A Dream Denied: The Criminalization of Homelessness in U.S. Cities 10, 40-41 (2006). 

JONES v. CITY OF LOS ANGELES 4433
O’Shea, 414 U.S. at 496 (noting that plaintiffs may have had

standing had they alleged that the laws under which they

feared prosecution in the future were unconstitutional); Perez

v. Ledesma, 401 U.S. 82, 101-02 (1971) (Brennan, J., concurring in part and dissenting in part) (noting prior aggressive

prosecution under an allegedly unconstitutional law as a factor for finding sufficient controversy for declaratory relief).

Past exposure to allegedly unlawful state action, while not

alone sufficient to establish a present case or controversy, is

“evidence bearing on whether there is a real and immediate

threat of repeated injury.” Lyons, 461 U.S. at 102 (internal

quotation marks omitted). 

[3] Appellants seek only prospective injunctive relief, not

damages. They do not ask for section 41.18(d) to be declared

facially unconstitutional; they seek only to have its enforcement enjoined in a small area of the city during nighttime

hours. Appellants have demonstrated both past injuries and a

real and immediate threat of future injury: namely, they have

been and are likely to be fined, arrested, incarcerated, prosecuted, and/or convicted for involuntarily violating section

41.18(d) at night in Skid Row. These law enforcement actions

restrict Appellants’ personal liberty, deprive them of property,

and cause them to suffer shame and stigma. In the absence of

any indication that the enormous gap between the number of

available beds and the number of homeless individuals in Los

Angeles generally and Skid Row in particular has closed,

Appellants are certain to continue sitting, lying, and sleeping

in public thoroughfares and, as a result, will suffer direct and

irreparable injury from enforcement of section 41.18(d). As

L.A.P.D. Chief Bratton has promised, they will be arrested,

prosecuted, and put in jail repeatedly, if necessary. See

DiMassa, Policing Homeless, supra. Appellants have therefore alleged an actual case or controversy and have standing

to bring this suit. 

In arguing that Appellants lack standing, the City misrelies

upon dicta in Ingraham v. Wright, 430 U.S. 651 (1977), for

4434 JONES v. CITY OF LOS ANGELES
the proposition that the Cruel and Unusual Punishment Clause

attaches only postconviction. It contends that Appellants have

suffered a constitutionally cognizable harm only if they have

been convicted and/or face an imminent threat of future conviction. The City asserts that Appellants have not adequately

demonstrated that they have been convicted and/or are likely

to be convicted in the future under section 41.18(d). 

[4] Ingraham addressed a claim that the Cruel and Unusual

Punishment Clause bars the use of disciplinary corporal punishment in public schools. Id. at 668. The Court explained that

the Clause places three distinct limits on the state’s criminal

law powers: 

First, it limits the kinds of punishment that can be

imposed on those convicted of crimes; second, it

proscribes punishment grossly disproportionate to

the severity of the crime; and third, it imposes substantive limits on what can be made criminal and

punished as such. 

Id. at 667 (citations omitted). Reviewing the history of the

Eighth Amendment, the Ingraham Court concluded that the

Clause does not regulate state action “outside the criminal

process.” Id. at 667-68. It reasoned that because the context

of disciplining schoolchildren is “wholly different” from that

of punishing criminals, disciplinary corporal punishment is

not subject to Eighth Amendment scrutiny. Id. at 669-71. 

[5] Ingraham rests on the distinction between state action

inside and “outside the criminal process,” id. at 667, not on

any distinction between criminal convictions and preconviction law enforcement measures such as arrest, jailing, and

prosecution. See id. at 686 (White, J., dissenting) (explaining

that the Court’s reasoning depends on the “distinction

between criminal and noncriminal punishment”). Thus, contrary to the City’s and the dissent’s argument, Ingraham does

not establish that the Cruel and Unusual Punishment Clause

JONES v. CITY OF LOS ANGELES 4435
only attaches postconviction. In fact, the Ingraham decision

expressly recognizes that the Clause “imposes substantive

limits on what can be made criminal,” id. at 667 (Powell, J.,

majority opinion), a protection that attaches before conviction, and the very one Appellants seek in this case. 

The City and the dissent advance out of context the following dicta from Ingraham to support their contention that a

conviction is necessary before one has standing to invoke our

jurisdiction: “[the Cruel and Unusual Punishment Clause] was

designed to protect those convicted of crimes,” id. at 664; 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 in accordance with due process

of law,” id. at 671 n.40. However, that language is relevant

only to the first two of the three circumscriptions on the criminal process identified by the Ingraham Court: limits on the

kind and proportionality of punishment permissible postconviction. That language is inapplicable when the challenge is

based on the third category of limitations, “on what can be

made criminal and punished as such.” Id. at 667. 

The Clause’s first two protections govern the particulars of

criminal punishment, “what kind” and “how much,” covering

only those who have been convicted of a criminal violation

and face punitive sanctions. A plaintiff alleging violations of

the first or second protections, therefore, has not suffered constitutionally cognizable harm unless he has been convicted.

See, e.g., City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,

243-44 (1983) (holding that the Eighth Amendment does not

apply to a claim involving deliberate indifference by government officials to the medical needs of an injured suspect

before his arrest). Thus, in Hawkins v. Comparet-Cassani, we

relied upon the above Ingraham dicta in holding that plaintiffs

who had not been convicted lacked standing under the Eighth

Amendment to challenge the use of electric stun belts during

court proceedings, a claim that arose under the first two protections of the Clause. 251 F.3d 1230, 1238 (9th Cir. 2001).

4436 JONES v. CITY OF LOS ANGELES
The Cruel and Unusual Punishment Clause’s third protection, however, differs from the first two in that it limits what

the state can criminalize, not how it can punish. See

Ingraham, 430 U.S. at 667. This protection governs the criminal law process as a whole, not only the imposition of punishment postconviction. See, e.g., Robinson v. California, 370

U.S. 660, 666 (1962) (“[A] law which made a criminal

offense of . . . a disease would doubtless be universally

thought to be an infliction of cruel and unusual punishment

. . . .”); see also Ingraham, 430 U.S. at 664, 666 (explaining

that the Eighth Amendment concerns “the criminal process”

and seeks “to limit the power of those entrusted with the

criminal-law function of government”). If the state transgresses this limit, a person suffers constitutionally cognizable

harm as soon as he is subjected to the criminal process. This

may begin well before conviction: at arrest, see, e.g., McNabb

v. United States, 318 U.S. 332, 343-44 (1943) (the requirement “that the police must with reasonable promptness show

legal cause for detaining arrested persons” is part of the “process of criminal justice”); at citation, see, e.g., Rosario v.

Amalgamated Ladies’ Garment Cutters’ Union, Local 10,

I.L.G.W.U., 605 F.2d 1228, 1249-50 (2d Cir. 1979) (issuance

by the police of an “Appearance Ticket” compelling an individual to appear in court commenced the criminal process); or

even earlier, see Dickey v. Florida, 398 U.S. 30, 43 (1970)

(the criminal process may begin pre-arrest, as soon as the

state decides to prosecute an individual and amasses evidence

against him). 

A more restrictive approach to standing, one that made conviction a prerequisite for any type of Cruel and Unusual Punishment Clause challenge, would allow the state to

criminalize a protected behavior or condition and cite, arrest,

jail, and even prosecute individuals for violations, so long as

no conviction resulted. Under this approach, the state could in

effect punish individuals in the preconviction stages of the

criminal law enforcement process for being or doing things

that under the Clause cannot be subject to the criminal proJONES v. CITY OF LOS ANGELES 4437
cess. But the Clause’s third protection limits the state’s ability

to criminalize certain behaviors or conditions, not merely its

ability to convict and then punish post-conviction. 

[6] Accordingly, to bring an as-applied challenge to a criminal statute alleged to transgress the Clause’s substantive limits on criminalization, all that is required for standing is some

direct injury—for example, a deprivation of property, such as

a fine, or a deprivation of liberty, such as an arrest—resulting

from the plaintiff’s subjection to the criminal process due to

violating the statute. Cf. Lyons, 461 U.S. at 101-02 (standing

requires a direct injury). At least one other court hearing a

challenge by homeless plaintiffs to municipal ordinances

alleged to violate the Clause’s substantive limits on criminalization has recognized this principle. See Joyce, 846 F. Supp.

at 853-54 (noting that an attempt to read Ingraham to restrict

Eighth Amendment standing to those convicted of crimes “is

refuted by the express language of Ingraham,” and holding

that the fact that one of the plaintiffs had been cited and paid

a fine “suffice[d] to invoke consideration of the Eighth

Amendment”). Other courts likewise appear to have reached

the merits of similar suits where homeless plaintiffs had not

suffered convictions. See Church v. City of Huntsville, 30

F.3d 1332, 1339 (11th Cir. 1994) (opinion suggests but does

not state that plaintiffs had not suffered convictions); Pottinger v. City of Miami, 810 F. Supp. 1551, 1559-60 (S.D. Fla.

1992) (same), remanded for limited purposes, 40 F.3d 1155

(11th Cir. 1994). 

Notwithstanding this well-established Supreme Court

authority, the City urges us to follow the Fifth Circuit, which

has based its rejection of an Eighth Amendment challenge by

homeless persons on the absence of a conviction. See Johnson

v. City of Dallas, 61 F.3d 442, 443-45 (5th Cir. 1995). There,

the district court had found that there was insufficient shelter

in Dallas and enjoined enforcement of an ordinance prohibiting sleeping in public against homeless individuals with no

other place to be. Johnson v. City of Dallas, 860 F. Supp. 344,

4438 JONES v. CITY OF LOS ANGELES
350 (N.D. Tex. 1994), rev’d on standing grounds, 61 F.3d

442. Plaintiffs had been ticketed for violating the ordinance

but none had been convicted. Johnson, 61 F.3d at 444. The

Fifth Circuit reversed, reasoning that the very dicta from

Ingraham that the City now relies on required a conviction for

standing. Id. at 444-45. In focusing on this lack of a conviction, the Fifth Circuit, the City, and the dissent all fail to recognize the distinction between the Cruel and Unusual

Punishment Clause’s first two protections and its third. Moreover, they ignore the imminent threat of conviction and the

evidence of actual convictions presented here. 

[7] Although a conviction is not required to establish standing for prospective relief from enforcement of a criminal law

against a status or behavior that may not be criminalized

under the Eighth Amendment, here, two of the six Appellants,

Purrie and Barger, have in fact been convicted and sentenced

for violating section 41.18(d). Documents in the record demonstrate that judgment was pronounced and Barger was sentenced by the Los Angeles County Superior Court to time

served on December 26, 2002. Similarly, judgment was pronounced and Purrie was given a twelve-month suspended sentence on January 15, 2003 with the condition that he “stay

away from location of arrest.”

4

 If a conviction is constitution4The City belatedly objects to the dispositions attached to the Barger

and Purrie declarations on foundational grounds. Having failed to assert

its objections before the district court, the City has waived its objections

as to the authenticity of the dispositions. See, e.g., Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1058 n.5 (9th Cir. 2003).

In addition, the City and the dissent claim Appellants lack standing

because they have failed to demonstrate that shelter was unavailable on

the nights they were arrested or cited for violating section 41.18(d), and

therefore cannot establish that they were punished for involuntary conduct.

Because Appellants seek only prospective injunctive relief, standing

depends on the likelihood of future injury, not the existence of past injury.

Nevertheless, undisputed evidence in the record, including several reports

directly authored or commissioned by City agencies or task forces, shows

that there is a chronic and severe gap between the number of homeless

JONES v. CITY OF LOS ANGELES 4439
ally required, the fact that two of the six plaintiffs were convicted suffices to establish standing for all. See Leonard v.

Clark, 12 F.3d 885, 888 (9th Cir. 1993), as amended. Thus

the City’s argument that Appellants lack standing because a

conviction is required fails on the facts as well as the law. 

The City next argues that Appellants lack standing because

they could assert a necessity defense. In support of this argument, the City relies on In re Eichorn, 81 Cal. Rptr. 2d 535,

539-40 (Cal. Ct. App. 1998), in which the California Court of

Appeal held that a homeless defendant may raise a necessity

defense to violation of a municipal anti-camping ordinance.

This argument also lacks merit. 

[8] A criminal defendant may assert a necessity defense if

he has committed an offense to prevent an imminent harm

that he could not have otherwise prevented. E.g., United

States v. Arellano-Rivera, 244 F.3d 1119, 1125 (9th Cir.

2001). Under California law, a court must instruct the jury on

the necessity defense if there is 

evidence sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2)

with no adequate alternative, (3) without creating a

greater danger than the one avoided, (4) with a good

faith belief in the necessity, (5) with such belief

being objectively reasonable, and (6) under circumstances in which he did not substantially contribute

to the emergency. 

individuals and the number of available beds in Los Angeles. E.g., L.A.

Homeless Servs. Auth., supra, at 2-14 (in the County as a whole, there are

almost 50,000 more homeless people than available beds). This evidence

supports the reasonable inference that shelter is unavailable for thousands

of homeless individuals in Los Angeles on any given night, including on

the nights in question. Moreover, each of the declarations either expressly

state that the declarant was unable to obtain shelter at the time they were

cited or arrested, or provide sufficient facts from which a reasonable inference can be drawn that they were unable to do so. 

4440 JONES v. CITY OF LOS ANGELES
People v. Pepper, 48 Cal. Rptr. 2d 877, 880 (Cal. Ct. App.

1996). 

[9] It is undisputed, however, that Appellants have been

and in the future will probably be fined, arrested, imprisoned,

and/or prosecuted, as well as suffer the loss of their personal

property, for involuntarily violating section 41.18(d). These

preconviction harms, some of which occur immediately upon

citation or arrest, suffice to establish standing and are not

salved by the potential availability of a necessity defense. The

loss of Appellants’ possessions when they are arrested and

held in custody is particularly injurious because they have so

few resources and may find that everything they own has disappeared by the time they return to the street. 

Moreover, the practical realities of homelessness make the

necessity defense a false promise for those charged with violating section 41.18(d). Homeless individuals, who may suffer

from mental illness, substance abuse problems, unemployment, and poverty, are unlikely to have the knowledge or

resources to assert a necessity defense to a section 41.18(d)

charge, much less to have access to counsel when they are

arrested and arraigned. Furthermore, even counseled homeless

individuals are unlikely to subject themselves to further jail

time and a trial when they can plead guilty in return for a sentence of time served and immediate release. Finally, one must

question the policy of arresting, jailing, and prosecuting individuals whom the City Attorney concedes cannot be convicted due to a necessity defense. If there is no offense for

which the homeless can be convicted, is the City admitting

that all that comes before is merely police harassment of a

vulnerable population? 

B. The Eighth Amendment Prohibition on Cruel

and Unusual Punishment

The district court erred by not engaging in a more thorough

analysis of Eighth Amendment jurisprudence under Robinson

JONES v. CITY OF LOS ANGELES 4441
v. California, 370 U.S. 660 (1962), and Powell v. Texas, 392

U.S. 514 (1968), when it held that the only relevant inquiry

is whether the ordinance at issue punishes status as opposed

to conduct, and that homelessness is not a constitutionally

cognizable status. 

The district court relied exclusively on the analysis of Robinson and Powell by another district court in Joyce v. City and

County of San Francisco, in which plaintiffs challenged certain aspects of San Francisco’s comprehensive homelessness

program on Eighth Amendment grounds. 846 F. Supp. 843

(N.D. Cal. 1994). Joyce, however, was based on a very different factual underpinning than is present here. Called the “Matrix Program,” the homelessness program was “ ‘an

interdepartmental effort . . . [utilizing] social workers and

health workers . . . [and] offering shelter, medical care, information about services and general assistance.’ ” Id. at 847

(alterations and omissions in original). One element of the

program consisted of the “Night Shelter Referral” program

conducted by the Police Department, which handed out “referrals” to temporary shelters. Id. at 848. The City demonstrated that of 3,820 referral slips offered to men, only 1,866

were taken and only 678 used. Id.

The Joyce plaintiffs made only the conclusory allegation

that there was insufficient shelter, id. at 849; they did not

make the strong evidentiary showing of a substantial shortage

of shelter Appellants make here. Moreover, the preliminary

injunction plaintiffs sought in Joyce was so broad as to enjoin

enforcement of prohibitions on camping or lodging in public

parks and on “ ‘life-sustaining activities such as sleeping, sitting or remaining in a public place,’ ” which might also

include such antisocial conduct as public urination and

aggressive panhandling. Id. at 851 (emphasis added). Reasoning that plaintiffs’ requested injunction was too broad and too

difficult to enforce, and noting the preliminary nature of its

findings based on the record at an early stage in the proceedings, the district court denied the injunction. Id. at 851-53.

4442 JONES v. CITY OF LOS ANGELES
The Joyce court also concluded that homelessness was not a

status protectable under the Eighth Amendment, holding that

it was merely a constitutionally noncognizable “condition.”

Id. at 857-58. 

We disagree with the analysis of Robinson and Powell conducted by both the district court in Joyce and the district court

in the case at bar. The City could not expressly criminalize the

status of homelessness by making it a crime to be homeless

without violating the Eighth Amendment, nor can it criminalize acts that are an integral aspect of that status. Because there

is substantial and undisputed evidence that the number of

homeless persons in Los Angeles far exceeds the number of

available shelter beds at all times, including on the nights of

their arrest or citation, Los Angeles has encroached upon

Appellants’ Eighth Amendment protections by criminalizing

the unavoidable act of sitting, lying, or sleeping at night while

being involuntarily homeless. A closer analysis of Robinson

and Powell instructs that the involuntariness of the act or condition the City criminalizes is the critical factor delineating a

constitutionally cognizable status, and incidental conduct

which is integral to and an unavoidable result of that status,

from acts or conditions that can be criminalized consistent

with the Eighth Amendment. 

Our analysis begins with Robinson, which announced limits

on what the state can criminalize consistent with the Eighth

Amendment. In Robinson, the Supreme Court considered

whether a state may convict an individual for violating a statute making it a criminal offense to “ ‘be addicted to the use

of narcotics.’ ” 370 U.S. at 660 (quoting Cal. Health & Safety

Code § 11721). The trial judge had instructed the jury that 

“[t]o be addicted to the use of narcotics is said to be

a status or condition and not an act. It is a continuing

offense and differs from most other offenses in the

fact that [it] is chronic rather than acute; that it continues after it is complete and subjects the offender

JONES v. CITY OF LOS ANGELES 4443
to arrest at any time before he reforms. . . . All that

the People must show is . . . that while in the City

of Los Angeles [Robinson] was addicted to the use

of narcotics . . . .” 

Id. at 662-63 (second alteration and third omission in original). The Supreme Court reversed Robinson’s conviction, reasoning: 

It is unlikely that any State at this moment in history

would attempt to make it a criminal offense for a

person to be mentally ill, or a leper, or to be afflicted

with a venereal disease. . . . [I]n the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be

universally thought to be an infliction of cruel and

unusual punishment in violation of the Eighth and

Fourteenth Amendments. 

We cannot but consider the statute before us as of

the same category. In this Court counsel for the State

recognized that narcotic addiction is an illness.

Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a

state law which imprisons a person thus afflicted as

a criminal, even though he has never touched any

narcotic drug within the State or been guilty of any

irregular behavior there, inflicts a cruel and unusual

punishment in violation of the Fourteenth Amendment. 

Id. at 666-67 (citation and footnotes omitted). 

[10] The Court did not articulate the principles that undergird its holding. At a minimum, Robinson establishes that the

state may not criminalize “being”; that is, the state may not

punish a person for who he is, independent of anything he has

done. See, e.g., Powell, 392 U.S. at 533 (Marshall, J., plurality

4444 JONES v. CITY OF LOS ANGELES
opinion) (stating that Robinson requires an actus reus before

the state may punish). However, as five Justices would later

make clear in Powell, Robinson also supports the principle

that the state cannot punish a person for certain conditions,

either arising from his own acts or contracted involuntarily, or

acts that he is powerless to avoid. Powell, 392 U.S. at 567

(Fortas, J., dissenting) (endorsing this reading of Robinson);

id. at 550 n.2 (White, J., concurring in the judgment) (same,

but only where acts predicate to the condition are remote in

time); see Robinson, 370 U.S. at 666-67 (stating that punishing a person for having a venereal disease would be unconstitutional, and noting that drug addiction “may be contracted

innocently or involuntarily”). 

Six years after its decision in Robinson, the Supreme Court

considered the case of Leroy Powell, who had been charged

with violating a Texas statute making it a crime to “ ‘get

drunk or be found in a state of intoxication in any public

place.’ ” Powell, 392 U.S. at 517 (Marshall, J., plurality opinion) (quoting Tex. Penal Code Ann. art. 477 (Vernon 1952)).

The trial court found that Powell suffered from the disease of

chronic alcoholism, which “ ‘destroys the afflicted person’s

will’ ” to resist drinking and leads him to appear drunk in

public involuntarily. Id. at 521. Nevertheless, the trial court

summarily rejected Powell’s constitutional defense and found

him guilty. See id. at 558 (Fortas, J., dissenting). On appeal

to the United States Supreme Court, Powell argued that the

Eighth Amendment prohibited “punish[ing] an ill person for

conduct over which he has no control.” Brief for Appellant at

6, Powell, 392 U.S. 514 (No. 405), 1967 WL 113841. 

In a 4-1-4 decision, the Court affirmed Powell’s conviction.

The four Justices joining the plurality opinion interpreted

Robinson to prohibit only the criminalization of pure status

and not to limit the criminalization of conduct. Powell, 392

U.S. at 533 (Marshall, J., plurality opinion). The plurality then

declined to extend the Cruel and Unusual Punishment

Clause’s protections to any involuntary conduct, citing slipJONES v. CITY OF LOS ANGELES 4445
pery slope concerns, id. at 534-35, and considerations of federalism and personal accountability, id. at 535-36. Because

Powell was convicted not for his status as a chronic alcoholic,

but rather for his acts of becoming intoxicated and appearing

in public, the Powell plurality concluded that the Clause as

interpreted by Robinson did not protect him. Id. at 532. 

In contrast, the four Justices in dissent read Robinson to

stand for the proposition that “[c]riminal penalties may not be

inflicted on a person for being in a condition he is powerless

to change.” Id. at 567 (Fortas, J., dissenting). Applying Robinson to the facts of Powell’s case, the dissenters first described

the predicate for Powell’s conviction as “the mere condition

of being intoxicated in public” rather than any “acts,” such as

getting drunk and appearing in public. Id. at 559. Next and

more significantly, the dissenters addressed the involuntariness of Powell’s behavior, noting that Powell had “ ‘an

uncontrollable compulsion to drink’ to the point of intoxication; and that, once intoxicated, he could not prevent himself

from appearing in public places.” Id. at 568. Having found

that the Cruel and Unusual Punishment Clause, as interpreted

by Robinson, protects against the criminalization of being in

a condition one is powerless to avoid, see id. at 567, and

because Powell was powerless to avoid public drunkenness,

the dissenters concluded that his conviction should be

reversed, see id. at 569-70. 

In his separate opinion, Justice White rejected the plurality’s proposed status-conduct distinction, finding it similar to

“forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having

a convulsion.” Id. at 548-49 (White, J., concurring in the

judgment). Justice White read Robinson to stand for the principle that “it cannot be a crime to have an irresistible compulsion to use narcotics,” id. at 548, and concluded that “[t]he

proper subject of inquiry is whether volitional acts [sufficiently proximate to the condition] brought about the” criminalized conduct or condition, id. at 550 n.2. 

4446 JONES v. CITY OF LOS ANGELES
Justice White concluded that given the holding in Robinson, “the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or being

drunk.” Id. at 549. For those chronic alcoholics who lack

homes, 

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. This position is consistent with that of the Powell

dissenters, who quoted and agreed with Justice White’s standard, see id. at 568 n.31 (Fortas, J., dissenting), and stated that

Powell’s conviction should be reversed because his public

drunkenness was involuntary, id. at 570. 

Justice White’s Powell opinion also echoes his prior dissent

in Robinson. In Robinson, Justice White found no Eighth

Amendment violation for two reasons: First, because he did

“not consider [Robinson’s] conviction to be a punishment for

having an illness or for simply being in some status or condition, but rather a conviction for the regular, repeated or habitual use of narcotics immediately prior to his arrest,”

Robinson, 370 U.S. at 686 & nn.2-3 (White, J., dissenting)

(discussing jury instructions regarding addiction and substantial evidence of Robinson’s frequent narcotics use in the days

prior to his arrest); and second, and most importantly for

understanding his opinion in Powell, because the record did

not suggest that Robinson’s drug addiction was involuntary,

see id. at 685. According to Justice White, “if [Robinson] was

convicted for being an addict who had lost his power of selfcontrol, I would have other thoughts about this case.” Id.

Justice White and the Powell dissenters shared a common

view of the importance of involuntariness to the Eighth

JONES v. CITY OF LOS ANGELES 4447
Amendment inquiry. They differed only on two issues. First,

unlike the dissenters, Justice White believed Powell had not

demonstrated that his public drunkenness was involuntary.

Compare Powell, 392 U.S. at 553 (White, J., concurring in the

judgment) (“[N]othing in the record indicates that [Powell]

could not have done his drinking in private . . . . Powell had

a home and wife, and if there were reasons why he had to

drink in public or be drunk there, they do not appear in the

record.”), with id. at 568 n.31 (Fortas, J., dissenting) (“I

believe these findings must fairly be read to encompass facts

that my Brother White agrees would require reversal, that is,

that for appellant Powell, ‘resisting drunkenness’ and ‘avoiding public places when intoxicated’ on the occasion in question were ‘impossible.’ ”). 

Second, Justice White rejected the dissent’s attempt to distinguish conditions from acts for Eighth Amendment purposes. See id. at 550 n.2 (White, J., concurring in the

judgment). We agree with Justice White that analysis of the

Eighth Amendment’s substantive limits on criminalization “is

not advanced by preoccupation with the label ‘condition.’ ”

Id. One could define many acts as being in the condition of

engaging in those acts, for example, the act of sleeping on the

sidewalk is indistinguishable from the condition of being

asleep on the sidewalk. “ ‘Being’ drunk in public is not far

removed in time from the acts of ‘getting’ drunk and ‘going’

into public,” and there is no meaningful “line between the

man who appears in public drunk and that same man five

minutes later who is then ‘being’ drunk in public.” Id. The

dissenters themselves undermine their proposed distinction by

suggesting that criminalizing involuntary acts that “typically

flow from . . . the disease of chronic alcoholism” would violate the Eighth Amendment, as well as by stating that “[i]f an

alcoholic should be convicted for criminal conduct which is

not a characteristic and involuntary part of the pattern of the

disease as it afflicts him, nothing herein would prevent his

punishment.” Id. at 559 n.2 (Fortas, J., dissenting) (emphasis

added). 

4448 JONES v. CITY OF LOS ANGELES
[11] Notwithstanding these differences, five Justices in

Powell understood Robinson to stand for the proposition that

the Eighth Amendment prohibits the state from punishing an

involuntary act or condition if it is the unavoidable consequence of one’s status or being. See id. at 548, 550 n.2, 551

(White, J., concurring in the judgment); id. at 567 (Fortas, J.,

dissenting); see also Robert L. Misner, The New Attempt

Laws: Unsuspected Threat to the Fourth Amendment, 33 Stan.

L. Rev. 201, 219 (1981) (“[T]he consensus [of White and the

dissenters apparently] was that an involuntary act does not

suffice for criminal liability.”). Although this principle did not

determine the outcome in Powell, it garnered the considered

support of a majority of the Court. Because the conclusion

that certain involuntary acts could not be criminalized was not

dicta, see United States v. Johnson, 256 F.3d 895, 915, 914-16

(9th Cir. 2001) (en banc) (Kozinski, J., concurring) (narrowly

defining dicta as “a statement [that] is made casually and

without analysis, . . . uttered in passing without due consideration of the alternatives, or . . . merely a prelude to another

legal issue that commands” the court’s full attention), we

adopt this interpretation of Robinson and the Cruel and

Unusual Punishment Clause as persuasive authority. We also

note that in the absence of any agreement between Justice

White and the plurality on the meaning of Robinson and the

commands of the Cruel and Unusual Punishment Clause, the

precedential value of the Powell plurality opinion is limited to

its precise facts. “When 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 . . . .” Marks v. United

States, 430 U.S. 188, 193 (1977) (omission in original) (internal quotation marks omitted); see also Kent Greenawalt, “Uncontrollable” Actions and the Eighth Amendment:

Implications of Powell v. Texas, 69 Colum. L. Rev. 927, 931

(1969) (“[T]he dissent comes closer to speaking for a majority

of the Court than does the plurality opinion.”). 

JONES v. CITY OF LOS ANGELES 4449
[12] Following Robinson’s holding that the state cannot

criminalize pure status, and the agreement of five Justices in

Powell that the state cannot criminalize certain involuntary

conduct, there are two considerations relevant to defining the

Cruel and Unusual Punishment Clause’s limits on the state’s

power to criminalize. The first is the distinction between pure

status—the state of being—and pure conduct—the act of

doing. The second is the distinction between an involuntary

act or condition and a voluntary one. Accordingly, in determining whether the state may punish a particular involuntary

act or condition, we are guided by Justice White’s admonition

that “[t]he proper subject of inquiry is whether volitional acts

brought about the ‘condition’ and whether those acts are sufficiently proximate to the ‘condition’ for it to be permissible to

impose penal sanctions on the ‘condition.’ ” Powell, 392 U.S.

at 550 n.2 (White, J., concurring in the judgment); see also

Bowers v. Hardwick, 478 U.S. 186, 202 n.2 (1986) (Blackmun, J., dissenting) (quoting and endorsing this statement in

discussing whether the Eighth Amendment limits the state’s

ability to criminalize homosexual acts). 

[13] The Robinson and Powell decisions, read together,

compel us to conclude that enforcement of section 41.18(d) at

all times and in all places against homeless individuals who

are sitting, lying, or sleeping in Los Angeles’s Skid Row

because they cannot obtain shelter violates the Cruel and

Unusual Punishment Clause. As homeless individuals, Appellants are in a chronic state that may have been acquired “innocently or involuntarily.” Robinson, 370 U.S. at 667. Whether

sitting, lying, and sleeping are defined as acts or conditions,

they are universal and unavoidable consequences of being

human. It is undisputed that, for homeless individuals in Skid

Row who have no access to private spaces, these acts can only

be done in public. In contrast to Leroy Powell, Appellants

have made a substantial showing that they are “unable to stay

off the streets on the night[s] in question.” Powell, 392 U.S.

at 554 (White, J., concurring in the judgment). 

4450 JONES v. CITY OF LOS ANGELES
In disputing our holding, the dissent veers off track by

attempting to isolate the supposed “criminal conduct” from

the status of being involuntarily homeless at night on the

streets of Skid Row. Unlike the cases the dissent relies on,

which involve failure to carry immigration documents, illegal

reentry, and drug dealing, the conduct at issue here is involuntary and inseparable from status—they are one and the same,

given that human beings are biologically compelled to rest,

whether by sitting, lying, or sleeping. The cases the dissent

cites do not control our reading of Powell and Robinson

where, as here, an Eighth Amendment challenge concerns the

involuntariness of a criminalized act or condition inseparable

from status. See Johnson, 256 F.3d at 915 (“Where it is clear

that a statement . . . is uttered in passing without due consideration of the alternatives, . . . it may be appropriate to re-visit

the issue in a later case.”). The City and the dissent apparently

believe that Appellants can avoid 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. That being an impossibility, by criminalizing sitting,

lying, and sleeping, the City is in fact criminalizing Appellants’ status as homeless individuals. 

Similarly, applying Robinson and Powell, courts have

found statutes criminalizing the status of vagrancy to be

unconstitutional. For example, Goldman v. Knecht declared

unconstitutional a Colorado statute making it a crime for

“ ‘[a]ny person able to work and support himself’ ” to “ ‘be

found loitering or strolling about, frequenting public places,

. . . begging or leading an idle, immoral or profligate course

of life, or not having any visible means of support.’ ” 295 F.

Supp. 897, 899 n.2, 908 (D. Colo. 1969) (three-judge court);

see also Wheeler v. Goodman, 306 F. Supp. 58, 59 n.1, 62, 66

(W.D.N.C. 1969) (three-judge court) (striking down as unconstitutional under Robinson a statute making it a crime to, inter

alia, be able to work but have no property or “ ‘visible and

known means’ ” of earning a livelihood), vacated on other

grounds, 401 U.S. 987 (1971). These cases establish that the

JONES v. CITY OF LOS ANGELES 4451
state may not make it an offense to be idle, indigent, or homeless in public places. Nor may the state criminalize conduct

that is an unavoidable consequence of being homeless—

namely sitting, lying, or sleeping on the streets of Los Angeles’s Skid Row. As Justice White stated in Powell,

“[p]unishing an addict for using drugs convicts for addiction

under a different name.” 392 U.S. at 548 (White, J., concurring in the judgment). 

IV. Conclusion

Homelessness is not an innate or immutable characteristic,

nor is it a disease, such as drug addiction or alcoholism. But

generally one cannot become a drug addict or alcoholic, as

those terms are commonly used, without engaging in at least

some voluntary acts (taking drugs, drinking alcohol). Similarly, an individual may become homeless based on factors

both within and beyond his immediate control, especially in

consideration of the composition of the homeless as a group:

the mentally ill, addicts, victims of domestic violence, the

unemployed, and the unemployable. That Appellants may

obtain shelter on some nights and may eventually escape from

homelessness does not render their status at the time of arrest

any less worthy of protection than a drug addict’s or an alcoholic’s. 

Undisputed evidence in the record establishes that at the

time they were cited or arrested, Appellants had no choice

other than to be on the streets. Even if Appellants’ past volitional acts contributed to their current need to sit, lie, and

sleep on public sidewalks at night, those acts are not sufficiently proximate to the conduct at issue here for the imposition of penal sanctions to be permissible. See Powell v. Texas,

392 U.S. 514, 550 n.2 (1968) (White, J., concurring in the

judgment). In contrast, we find no Eighth Amendment protection for conduct that a person makes unavoidable based on

their own immediately proximate voluntary acts, for example,

4452 JONES v. CITY OF LOS ANGELES
driving while drunk, harassing others, or camping or building

shelters that interfere with pedestrian or automobile traffic. 

Our holding is a limited one. We do not hold that the

Eighth Amendment includes a mens rea requirement, or that

it prevents the state from criminalizing conduct that is not an

unavoidable consequence of being homeless, such as panhandling or obstructing public thoroughfares. Cf. United States v.

Black, 116 F.3d 198, 201 (7th Cir. 1997) (rejecting convicted

pedophile’s Eighth Amendment challenge to his prosecution

for receiving, distributing, and possessing child pornography

because, inter alia, defendant “did not show that [the] charged

conduct was involuntary or uncontrollable”). 

We are not confronted here with a facial challenge to a statute, cf. Roulette v. City of Seattle, 97 F.3d 300, 302 (9th Cir.

1996) (rejecting a facial challenge to a municipal ordinance

that prohibited sitting or lying on public sidewalks); Tobe v.

City of Santa Ana, 9 Cal. 4th 1069, 1080 (1995) (finding a

municipal ordinance that banned camping in designated public areas to be facially valid); nor a statute that criminalizes

public drunkenness or camping, cf. Joyce v. City and County

of San Francisco, 846 F. Supp. 843, 846 (N.D. Cal. 1994)

(program at issue targeted public drunkenness and camping in

public parks); or sitting, lying, or sleeping only at certain

times or in certain places within the city. And we are not called upon to decide the constitutionality of punishment when

there are beds available for the homeless in shelters. Cf. Joel

v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000)

(affirming summary judgment for the City where “[t]he shelter has never reached its maximum capacity and no individual

has been turned away for lack of space or for inability to pay

the one dollar fee”). 

We hold only that, just as the Eighth Amendment prohibits

the infliction of criminal punishment on an individual for

being a drug addict, Robinson, 370 U.S. at 667; or for involuntary public drunkenness that is an unavoidable consequence

JONES v. CITY OF LOS ANGELES 4453
of being a chronic alcoholic without a home, Powell, 392 U.S.

at 551 (White, J., concurring in the judgment); id. at 568 n.31

(Fortas, J., dissenting); the Eighth Amendment prohibits the

City from punishing involuntary sitting, lying, or sleeping on

public sidewalks that is an unavoidable consequence of being

human and homeless without shelter in the City of Los Angeles. 

[14] We do not suggest that Los Angeles adopt any particular social policy, plan, or law to care for the homeless. See

Johnson v. City of Dallas, 860 F. Supp. 344, 350-51 (N.D.

Tex. 1994), rev’d on standing grounds, 61 F.3d 442 (5th Cir.

1995). We do not desire to encroach on the legislative and

executive functions reserved to the City Council and the

Mayor of Los Angeles. There is obviously a “homeless problem” in the City of Los Angeles, which the City is free to

address in any way that it sees fit, consistent with the constitutional principles we have articulated. See id. By our decision,

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 of Los Angeles at any time and at

any place within the City. All we hold is 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

section 41.18(d) at all times and places throughout the City

against homeless individuals for involuntarily sitting, lying,

and sleeping in public. Appellants are entitled at a minimum

to a narrowly tailored injunction against the City’s enforcement of section 41.18(d) at certain times and/or places. 

[15] We reverse the award of summary judgment to the

City, grant summary judgment to Appellants, and remand to

the district court for a determination of injunctive relief consistent with this opinion. 

REVERSED AND REMANDED.

4454 JONES v. CITY OF LOS ANGELES
RYMER, Circuit Judge, dissenting: 

There is no question that homelessness is a serious problem

and the plight of the homeless, a cause for serious concern.

Yet this does not give us license to expand the narrow limits

that, in a “rare type of case,” the Cruel and Unusual Punishment Clause of the Eighth Amendment places on substantive

criminal law. The majority sees it differently, concluding that

the Eighth Amendment forbids the City of Los Angeles from

enforcing an ordinance which makes it unlawful to sit, sleep,

or lie on sidewalks. It gets there by cobbling together the

views of dissenting and concurring justices, creating a circuit

conflict on standing, and overlooking both Supreme Court

precedent, and our own, that restrict the substantive component of the Eighth Amendment to crimes not involving an act.

I disagree, and therefore dissent, for a number of reasons. 

Los Angeles Municipal Code (LAMC) § 41.18(d) does not

punish people simply because they are homeless. It targets

conduct — sitting, lying or sleeping on city sidewalks — that

can be committed by those with homes as well as those without. Although the Supreme Court recognized in Robinson v.

California, 370 U.S. 660 (1962), that there are substantive

limits on what may be made criminal and punished as such,

both the Court and we have constrained this category of

Eighth Amendment violation to persons who are being punished for crimes that do not involve conduct that society has

an interest in preventing. See, e.g., Powell v. Texas, 392 U.S.

514, 531-33 (1968) (Marshall, J., plurality); United States v.

Ayala, 35 F.3d 423, 426 (9th Cir. 1994). 

Neither the Supreme Court nor any other circuit court of

appeals has ever held that conduct derivative of a status may

not be criminalized. The majority relies on the dissenting

opinions and dicta in the concurring opinion in Powell (which

involved a conviction for public drunkenness of an alcoholic

who was to some degree compelled to drink), but not even the

Powell dissent would go so far as to hold that conduct which

JONES v. CITY OF LOS ANGELES 4455
is closely related to status may not constitutionally be punished unless the conduct is “a characteristic and involuntary

part of the pattern of the [status] as it afflicts” the particular

individual. 392 U.S. at 559, n.2 (Fortas, J., dissenting). This

is not the case with a homeless person who sometimes has

shelter and sometimes doesn’t. 

Nor, until now, has the Supreme Court or any other circuit

court of appeals intimated (let alone held) that status plus a

condition which exists on account of discretionary action by

someone else is the kind of “involuntary” condition that cannot be criminalized. Here, the majority holds that the Eighth

Amendment “prohibits the City from punishing involuntary

sitting, lying, or sleeping on public sidewalks that is an

unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Maj. op. at 4454. In

other words, the City cannot penalize the status of being

homeless plus the condition of being without shelter that

exists by virtue of the City’s failure to provide sufficient

housing on any given night. The ramifications of so holding

are quite extraordinary. We do not — and should not —

immunize from criminal liability those who commit an act as

a result of a condition that the government’s failure to provide

a benefit has left them in. 

Regardless, the challenge should fail even on the majority’s

view of the law because Jones has not shown that he was

accused of being in an involuntary condition which he had no

capacity to change or avoid. The attack on LAMC § 41.18(d)

is not facial; it is as applied to Jones and those who join him

in this suit. Jones’s theory (embraced by the majority) is that

the City’s failure to supply adequate shelter caused the six

persons who pursue this action to commit the prohibited act,

that is, the act of sleeping, sitting or lying on the streets. However, there is no showing in this case that shelter was unavailable on the night that any of the six was apprehended. This

is not a class action; each of the six must have been injured

in fact by enforcement of the ordinance. As no one has made

4456 JONES v. CITY OF LOS ANGELES
that showing, the claimants both lack standing and lose on the

merits. If Jones were not on the streets because he couldn’t

find shelter, his conviction cannot have offended the Constitution no matter how broadly the Eighth Amendment is construed. 

Finally, Eighth Amendment protections apply to those who

are convicted, not to those who are arrested. Even assuming

that at least one of the six homeless persons in this action has

been convicted and will be prosecuted again, there is no basis

for supposing that he will be convicted again. California law

provides a defense to conviction under an ordinance such as

Los Angeles’s if the homeless person shows that he slept, lay

or sat on the streets because of economic forces or inadequate

alternatives. See In re Eichorn, 69 Cal. App. 4th 382, 389-91

(1998). Thus, it cannot be said that any of the six will be subject to punishment for purposes of the Eighth Amendment on

account of any involuntary condition. They both lack standing, and lose on the merits, for this reason as well. 

Accordingly, I part company with the majority’s expansive

construction of the substantive limits on criminality. It

exceeds the boundaries set by the Supreme Court on the Robinson limitation, and intrudes into the state’s province to

determine the scope of criminal responsibility. I would affirm.

I

Edward Jones and his wife are homeless. Their monthly

general relief check is not sufficient to pay for a hotel room

on Skid Row for the entire month. No shelter permits a childless couple to stay together. Jones has been cited, but not

arrested or convicted, for sleeping on the streets in violation

of LAMC § 41.18(d). 

Robert Lee Purrie has tried to find shelter in Skid Row and

been told that there are no beds available. He was cited for

violating LAMC § 41.18(d) but failed to appear, which apparJONES v. CITY OF LOS ANGELES 4457
ently led to a warrant being issued for his arrest. He was

arrested pursuant to the warrant and also charged with violating the ordinance. Purrie states that he was given a suspended

sentence on condition that he stay away from the place he was

arrested. There is no record of conviction, or any evidence

that Purrie was turned away from a shelter the night he was

cited. 

Patricia and George Vinson have tried to rent rooms in Skid

Row hotels and to get into various shelters, but have been

unable to find a facility with space they can afford that will

allow them to stay together. When they lack money for a

motel room, they take the bus to a shelter in South Los Angeles. Occasionally they miss the bus and are forced to sleep on

the street. They were cited on one of these occasions, but not

arrested or convicted, for violating LAMC § 41.18(d). 

Thomas Cash is homeless and disabled. He was residing in

a facility on Skid Row provided through the County’s coldweather voucher program when he was cited for sitting on the

sidewalk. 

Stanley Barger also is homeless and disabled. He can afford

to stay in a hotel for only a few days a month on his general

relief allowance; his social security income was cut off when

he was arrested for consuming alcohol in violation of his

parole terms. He was arrested for sleeping on the street and

also on an outstanding warrant. He states he was sentenced to

time served, but does not say on which charge. There is no

record of conviction. 

Jones claims that some 42,000 people are homeless each

night in the City of Los Angeles, with approximately 11,000

living in the Skid Row area. The number of homeless persons

exceeds the number of available shelter beds. Of the 11,000

on Skid Row, approximately 7,000 sleep in a single-room

occupancy facility and 2,000 stay in emergency shelter facili4458 JONES v. CITY OF LOS ANGELES
ties. On any given night, this leaves 2,000 people without

shelter. 

Jones seeks to enjoin enforcement of LAMC § 41.18(d)

between the hours of 9:00 p.m. and 6:30 a.m. The parties

brought cross-motions for summary judgment. The district

court rejected Jones’s contention that the failure of the City to

provide sufficient housing compels the conclusion that homelessness is cognizable as a status. It agreed with Judge Jensen’s analysis in Joyce v. City and County of San Francisco,

846 F. Supp. 843 (N.D. Cal. 1994), that status cannot be

defined as a function of the discretionary acts of others, and

held that even if homelessness were considered a status,

criminalizing the acts of sitting, lying, or sleeping on the

streets would not be a cognizable violation of the Eighth

Amendment. Accordingly, the court granted the City’s motion

for summary judgment. 

II

The City asserts for the first time on appeal that the homeless persons who pursue this Eighth Amendment action lack

standing because they were never convicted of violating the

ordinance. It points to Johnson v. City of Dallas, 61 F.3d 442

(5th Cir. 1995), where the court held that homeless persons

who sought to enjoin enforcement of a Dallas ordinance prohibiting sleeping in public had no standing as none had been

convicted, and to Davison v. City of Tucson, 924 F. Supp.

989, 993 (D. Ariz. 1996), which similarly held that homeless

persons challenging a city resolution to remove them from a

location where they had camped lacked standing because “the

Eighth Amendment protection against cruel and unusual punishment can only be invoked by persons convicted of crimes.”

I agree with the City that our jurisdiction is implicated, and

I disagree with the majority that we should be persuaded to

reach the merits by Joyce, 846 F. Supp. at 854, or by cases

where the court did not even address the question whether

there had been convictions. Joyce was a class action in which

JONES v. CITY OF LOS ANGELES 4459
the plaintiffs alleged injuries to individuals in the putative

class that included convictions of “camping”-related offenses,

and neither Church v. City of Huntsville, 30 F.3d 1332, 1339

(11th Cir. 1994), nor Pottinger v. City of Miami, 810 F. Supp.

1551, 1559-60 (S.D. Fla. 1992), states one way or the other

whether plaintiffs had been convicted. I also disagree with the

majority’s conclusion that “all that is required for standing is

some direct injury — for example, a deprivation of property,

such as a fine, or liberty, such as an arrest — based on the

plaintiff’s violation of the statute,” maj. op. at 4438, because

this is an action arising under the Eighth Amendment, where

injury comes from cruel and unusual punishment — not under

the Due Process Clause, where injury comes from deprivation

of a liberty or property interest without due process. Nevertheless, in a case such as this the standing inquiry essentially

collapses into the merits, so instead of treating the issue separately as I normally would, I will simply explain why, in my

view, there is no basis upon which Jones is entitled to relief.1

III

Jones argues that LAMC § 41.18(d) makes criminal what

biology and circumstance make necessary, that is, sitting,

lying, and sleeping on the streets. He maintains that the gap

between the number of homeless persons in Los Angeles, and

the number of available shelter beds, leaves thousands without shelter every night. Jones claims that the situation is particularly acute on Skid Row, where most homeless shelters

and services have been centralized. As Jones puts it, so long

as there are more homeless people than shelter beds, “the

1

It would appear that at least Purrie and Barger raise a triable issue that

they were convicted of violating LAMC § 41.18(d) and fear conviction in

the future. While this might satisfy the Fifth Circuit’s Johnson test, it does

not necessarily save their standing to the extent they challenge the ordinance based on being convicted for the involuntary “condition” of being

on the streets without available shelter. This is because there is no evidence that shelter was unavailable when they committed the underlying

offense of sitting, sleeping or lying on City sidewalks. 

4460 JONES v. CITY OF LOS ANGELES
nightly search for shelter will remain a zero-sum game in

which many of the homeless, through no fault of their own,

will end up breaking the law.” By enforcing the ordinance,

Jones contends, the City subjects homeless persons to a cycle

of citation, arrest, and punishment for the involuntary and

harmless conduct of sitting or lying in the street. Accordingly,

he seeks to bring the ordinance “in line with less draconian

ordinances in other cities” by barring its enforcement in Skid

Row during nighttime hours. 

Jones relies on Robinson v. California, 370 U.S. 660

(1962), to argue that persons cannot be punished for their status alone. In Robinson, the Court reversed the conviction of

a drug addict who had been convicted of violating a California statute that made it a criminal offense for a person to “be

addicted to the use of narcotics.” The Court observed of this

statute, that it

is not one which punishes a person for the use of

narcotics, for their purchase, sale or possession, or

for antisocial or disorderly behavior resulting from

their administration. It is not a law which even purports to provide or require medical treatment.

Rather, we deal with a statute which makes the “status” of narcotic addiction a criminal offense, for

which the offender may be prosecuted “at any time

before he reforms.” California has said that a person

can be continuously guilty of this offense, whether

or not he has ever used or possessed any narcotics

within the State, and whether or not he has been

guilty of any antisocial behavior there. 

Id. at 666. The Court noted that narcotic addiction was “an illness which may be contracted innocently or involuntarily,”

and held that “a state law which imprisons a person thus

afflicted as a criminal, even though he has never touched any

narcotic drug within the State or been guilty of any irregular

JONES v. CITY OF LOS ANGELES 4461
behavior there, inflicts a cruel and unusual punishment . . . .”

Id. at 667. 

Jones submits that as the City could not expressly criminalize the status of being homeless without offending the Eighth

Amendment, it cannot enforce the ordinance when the number of homeless persons exceeds the number of available shelter beds because to do so has the effect of criminalizing

homelessness. For this he relies on Pottinger v. City of Miami,

810 F. Supp. 1551 (S.D. Fla. 1992). Pottinger was a class

action on behalf of 6,000 homeless people living in Miami

who alleged that arrests for sleeping or bathing in public, and

destruction of their property, violated their rights under the

Eighth Amendment. The court held that arresting homeless

individuals for harmless, involuntary conduct is cruel and

unusual punishment and a violation of their due process

rights. Based on the record adduced in that case, it found that

being homeless is rarely a choice; it also found that the homeless plaintiffs lacked any place where they could lawfully be

and had no realistic choice but to live in public places because

of the unavailability of low-income housing or alternative

shelter. In this sense, the court believed that their conduct was

involuntary and that being arrested effectively punishes the

homeless for being homeless. However, in my view, Pottinger’s extension of the Eighth Amendment to conduct that

is derivative of status takes the substantive limits on criminality further than Robinson or its progeny support. See Joyce,

846 F. Supp. at 856-58 (rejecting Pottinger’s rationale as a

dubious application of Robinson and Powell as well as principles of federalism). 

In Powell v. Texas, 392 U.S. 514 (1968), the successor case

to Robinson, the Court affirmed a conviction for being found

in a state of intoxication in a public place in violation of state

law. Justice Marshall’s plurality opinion rejected Powell’s

reliance on Robinson because Powell was not convicted for

being a chronic alcoholic but for being in public while drunk

on a particular occasion. As he explained:

4462 JONES v. CITY OF LOS ANGELES
Robinson so viewed brings this Court but a very

small way into the substantive criminal law. And

unless Robinson is so viewed it is difficult to see any

limiting principle that would serve to prevent this

Court from becoming, under the aegis of the Cruel

and Unusual Punishment Clause, the ultimate arbiter

of the standards of criminal responsibility, in diverse

areas of the criminal law, throughout the country. 

Id. at 533 (Marshall, J., plurality). The plurality also rejected

the dissent’s interpretation of Robinson — adopted by Jones

and the majority here — as precluding the imposition of criminal penalties upon a person for being in a condition he is

powerless to change. Rather, 

[t]he entire thrust of Robinson’s interpretation of the

Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has

committed some act, has engaged in some behavior,

which society has an interest in preventing, or perhaps in historical common law terms, has committed

some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense,

“involuntary” or “occasioned by a compulsion.” 

Id. at 533. 

Justice White concurred in the judgment. In his view, if it

could not be a crime to have an “irresistible compulsion to use

narcotics” in Robinson, then the use of narcotics by an addict

must be beyond the reach of the criminal law. Id. at 548-49

(White, J., concurring in the result). From this it followed to

Justice White that the statute under which Powell was convicted should not be applied to a chronic alcoholic who has

a compulsion to drink and nowhere but a public place in

which to do so. “As applied to [such alcoholics] this statute

is in effect a law which bans a single act for which they may

JONES v. CITY OF LOS ANGELES 4463
not be convicted under the Eighth Amendment — the act of

getting drunk.” Id. at 551. However, Justice White did not

believe the conviction offended the Constitution because

Powell made no showing that he was unable to stay off the

streets on the night he was arrested. Id. at 552-53. 

The Powell dissent opined that a criminal penalty could not

be imposed on a person suffering the disease of chronic alcoholism for a condition — being in a state of intoxication in

public — which is a characteristic part of the pattern of his

disease. Id. at 559 (Fortas, J., dissenting). Contrary to the plurality, the dissent read Robinson as standing on the principle

that “[c]riminal penalties may not be inflicted upon a person

for being in a condition he is powerless to change.” Id. at 567.

Noting that the statute in Powell differed from the statute in

Robinson by covering more than mere status (being intoxicated and being found in a public place while in that condition), the dissent nevertheless found the same constitutional

defect present as in both cases, the defendant was accused of

being “in a condition which he had no capacity to change or

avoid.” Id. at 567-68.

Finally, the Court commented on the purpose of the Cruel

and Unusual Punishment Clause, and on Robinson, in

Ingraham v. Wright, 430 U.S. 651 (1977). Ingraham involved

the use of corporal punishment of students in a public school.

“An examination of the history of the Amendment and the

decisions of this Court construing the proscription against

cruel and unusual punishment confirms that it was designed

to protect those convicted of crimes.” Id. at 664; see also Graham v. Connor, 490 U.S. 386, 392 & n.6 (1989) (noting that

Judge Friendly’s view that Eighth Amendment protections do

not attach until after conviction and sentence “was confirmed

by Ingraham”). Put differently, “[t]he primary purpose of [the

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

(quoting Powell, 392 U.S. at 531-32 (Marshall, J., plurality)).

4464 JONES v. CITY OF LOS ANGELES
After surveying its “cruel and unusual punishment” jurisprudence, the Court remarked that 

these decisions recognize that the Cruel and Unusual

Punishments Clause circumscribes the criminal process in three ways. First, it limits the kinds of punishment that can be imposed on those convicted of

crimes; second, it proscribes punishment grossly disproportionate to the severity of the crime; and third,

it imposes substantive limits on what can be made

criminal and punished as such.

Id. at 667 (citations omitted). Of the last, or Robinson, limitation, the Court stated: “We have recognized the last limitation

as one to be applied sparingly.” Id. (referring to Powell, 393

U.S. at 531-32). 

Our court has considered whether individuals are being

punished on account of status rather than conduct several

times. In United States v. Ritter, 752 F.2d 435 (1985), the

defendant was convicted of possession of cocaine with intent

to distribute. He was stopped at a border checkpoint but was

not carrying immigration documents. Id. at 436. This led to a

search that uncovered drugs, and to a motion to suppress that

challenged the constitutionality of a federal statute making it

a criminal offense for documented aliens to fail to carry documents. Ritter argued that requiring documents to check his

status offended the Eighth Amendment’s substantive limits on

what can be made criminal. Id. at 437. Citing Robinson as an

example of “the rare type of case in which the clause has been

used to limit what may be made criminal,” we held that the

statute at issue in Ritter did not come with the purview of

“this unusual sort of case.” Id. In doing so, we emphasized the

Supreme Court’s admonition that “this particular use of the

clause is to be applied sparingly,” and reiterated that “[t]he

primary purpose of the clause is directed at the method or

kind of punishment imposed for a criminal violation.” Id. at

438 (citing Ingraham, 430 U.S. at 667). 

JONES v. CITY OF LOS ANGELES 4465
In United States v. Kidder, 869 F.2d 1328 (9th Cir. 1989),

a defendant convicted of possession of cocaine with intent to

distribute argued that he was being unconstitutionally punished because of his status as a mentally ill drug addict. We

understood his contention to be that his involvement was

caused by mental illness, so to imprison him for drug dealing

was tantamount to punishing him for being mentally ill. Id. at

1331-32. We concluded that because the statute under which

he was convicted punishes a person for the act of possessing

illegal drugs with intent to distribute, it does not run afoul of

Robinson. Id. at 1332. Kidder also argued that even if he were

being punished for his acts rather than his status, the involuntary nature of the acts rendered them immune from criminal

punishment. Id. We recognized that this issue was raised in

Powell but no majority opinion emerged; however, we

declined to decide it because Kidder’s guilty plea waived any

argument that his actions were involuntary.2Id. at 1332-33. 

And in United States v. Ayala, 35 F.3d 423 (9th Cir. 1994),

the defendant was convicted of illegal re-entry in the United

States without permission and within five years of being

deported. Relying on Robinson, he argued that the “found in”

provision of 28 U.S.C. § 1326 impermissibly punished him

for the “status” of being found in the United States. Id. at 425.

We thought the reliance misplaced, noting that the “Supreme

Court has subsequently limited the applicability of Robinson

to crimes that do not involve an actus reus.” Id. at 426 (citing

Powell, 392 U.S. at 533 (Marshall, J., plurality)). As a conviction for being “found in” the United States necessarily

requires that a defendant commit the act of re-entering the

country without permission within five years of being

deported, there was no Eighth Amendment problem. 

2

In this connection, we noted that “[t]he proper procedure to raise this

sort of claim would have been for Kidder to have pleaded not guilty and

then to challenge the constitutionality of the [statute]. Having pleaded

guilty, however, Kidder may not now claim that his actions were really

involuntary and thus not constitutionally susceptible to punishment.” Kidder, 869 F.2d at 1333. 

4466 JONES v. CITY OF LOS ANGELES
These cases indicate to me that application of LAMC

§ 41.18(d) to Jones’s situation is not the “rare type of case”

for which the Cruel and Unusual Punishment Clause limits

what may be criminalized. Robinson does not apply to criminalization of conduct. Its rationale is that the California statute

penalizing addiction failed to criminalize conduct, and this

failure is what made it unconstitutional. 370 U.S. at 666

(“This statute, therefore, is not one which punishes a person

for the use of narcotics, for their purchase, sale or possession,

or for antisocial or disorderly behavior resulting from their

administration.”). The plurality in Powell interpreted Robinson this way, and in a view that is binding on us now, we previously adopted the plurality’s position as controlling by

stating in Ayala that “[t]he Supreme Court has subsequently

limited the applicability of Robinson to crimes that do not

involve an actus reus.” Ayala, 35 F.3d at 426 (citing Powell,

392 U.S. at 533 (Marshall, J., plurality)); see also United

States v. Parga-Rosas, 238 F.3d 1209, 1212 (9th Cir. 2001)

(noting that the point of Powell and Ayala is that criminal

penalties can be imposed only if the accused “has committed

some actus reus”). As the offense here is the act of sleeping,

lying or sitting on City streets, Robinson does not apply.3

Also, in the rare case exemplified by Robinson, the status

being criminalized is an internal affliction, potentially an

innocent or involuntary one. See Robinson, 370 U.S. at 665-

67 (equating a statute that makes the status of addiction criminal with making it a crime for a person to be mentally ill, or

a leper, or to be afflicted with a venereal disease, and noting

3Neither of the two 1969 district court opinions cited by the majority,

maj. op. at 4451, in support of the proposition that the Eighth Amendment

forbids criminalizing conduct derivative of status, Goldman v. Knecht, 295

F. Supp. 897 (D. Colo. 1969); Wheeler v. Goodman, 306 F. Supp. 58

(W.D.N.C. 1969), vacated on other grounds by 401 U.S. 987 (1971), is to

the contrary. In fact, in both cases the court struck down the statute at

issue for criminalizing status, not conduct, explicitly recognizing that there

would have been no trouble had the statutes instead criminalized conduct.

Goldman, 295 F. Supp. at 908; Wheeler, 306 F. Supp. at 64. 

JONES v. CITY OF LOS ANGELES 4467
that addiction is an illness that “may be contracted innocently

or involuntarily”). Although the majority acknowledges that

homelessness is neither a disease nor an innate or immutable

characteristic, maj. op. at 4452, it nevertheless holds that

Jones, as a homeless individual, is “in a chronic state that may

have been ‘contracted innocently or involuntarily.’ ” Id. at

4450. Being homeless, however, is a transitory state. Some

people fall into it, others opt into it. For many, including the

homeless persons who pursue this action, it is a status that

fluctuates on a daily basis and can change depending upon

income and opportunities for shelter. Many are able to escape

it altogether. See U.S. Conf. of Mayors, A Status Report on

Hunger and Homelessness in America’s Cities 2002 at 312

(indicating that “people remain homeless an average of six

months in survey cities”).4 In addition, the justices in Powell

who were troubled by the statute at issue there, which made

it a crime to be found intoxicated in public, thought it was

problematic because a chronic alcoholic has a compulsion to

drink wherever he is. See Powell, 392 U.S. at 549 (White, J.,

concurring) (noting that resisting drunkenness and avoiding

public places when intoxicated may be impossible for some);

id. at 568 (Fortas, J., dissenting) (noting that like the addict

in Robinson, an alcoholic is powerless to avoid drinking to the

point of intoxication and once intoxicated, to prevent himself

from appearing in public places). 

In further contrast to Robinson, where the Court noted that

California through its statute “said that a person can be con4This is the only study in the record (others referred to by the majority

are not), and it does not indicate that Los Angeles was among the cities

surveyed. However, there is no reason to believe that the statistics aren’t

applicable to Los Angeles as well. See, e.g., Daniel Flaming, et al., Homeless in LA: Final Research Report for the 10-Year Plan to End Homelessness in Los Angeles County at 72 (Sept. 2004) (finding that in a given year

in Los Angeles less than ten percent of the homeless population remained

homeless for more than six months), available at http://

www.bringlahome.org/docs/HILA_Final.PDF. (This study is not part of

the record, either.) 

4468 JONES v. CITY OF LOS ANGELES
tinuously guilty of this offense [being addicted to the use of

narcotics], whether or not he has ever used or possessed any

narcotics within the State, and whether or not he has been

guilty of any antisocial behavior there,” 370 U.S. at 666, Los

Angeles through its ordinance does not purport to say that “a

person can be continuously guilty of this offense,” whether or

not he has ever slept on a City street. This is important for two

reasons: first, because it shows that the statute itself does not

suffer the Robinson defect of making the status of being

homeless a criminal offense; and second, because there is no

evidence that Jones or any of the parties joining with him —

including Purrie or Barger, who were convicted of violating

LAMC § 41.18(d) — were unable to stay off the sidewalk on

the night they were arrested. For this reason, Jones cannot

prevail on the evidence presented even if it were open to us

to rely on Justice White’s concurring opinion in Powell,

which I believe Alaya forecloses. Justice White ended up concurring in the result because Powell “made no showing that

he was unable to stay off the streets on the night in question.”

Powell, 392 U.S. at 554 (White, J., concurring in the result).

Despite this, the majority here reasons that unlike Powell,

Purrie and Barger made a substantial showing that they are

“unable to stay off the streets on the night[s] in question,”

because “[w]hether sitting, lying, and sleeping are defined as

acts or conditions, they are universal and unavoidable consequences of being human. It is undisputed that, for homeless

individuals in Skid Row who have no access to private

spaces, these acts can only be done in public.” Maj. op. at

4450. This, of course, is simply a conclusion about the usual

condition of homeless individuals in general. As Justice

White pointed out with respect to Powell, “testimony about

his usual condition when drunk is no substitute for evidence

about his condition at the time of his arrest.” Powell, 392 U.S.

at 553 (White, J., concurring in the result). The same is true

here. Testimony about Jones’s usual condition when homeless

is not a surrogate for evidence about his condition at the time

he was arrested. 

JONES v. CITY OF LOS ANGELES 4469
Wholly apart from whatever substantive limits the Eighth

Amendment may impose on what can be made criminal and

punished as such, the Cruel and Unusual Punishment Clause

places no limits on the state’s ability to arrest. Jones relies

heavily on “mass arrests” of homeless people on Skid Row.

However, the Eighth Amendment’s “protections d[o] not

attach until after conviction and sentence.” Graham, 490 U.S.

at 392 n.6. The Court said so in Ingraham: “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, and reiterated

this position in Graham, 490 U.S. at 392 n.6. See also Johnson, 61 F.3d at 445 (finding that plaintiffs who had not been

convicted of violating a sleeping in public ordinance lacked

standing to challenge it on Eighth Amendment grounds). It is

not open to us to back off the rule, or to accept, as the majority here does instead, the view of the dissent in Ingraham that

the Court’s rationale was based upon the “distinction between

criminal and noncriminal punishment.” Maj. op. at 4435

(quoting 430 U.S. at 687 (White, J., dissenting)). 

In any event, there is a difference between the protection

afforded by the Eighth Amendment, and protection afforded

by the Fourteenth. Protection against deprivations of life, liberty and property without due process is, of course, the role

of the Fourteenth Amendment, not the Eighth. The majority’s

analysis of the substantive component of the Eighth Amendment blurs the two. However, the Eighth Amendment does not

afford due process protection when a Fourteenth Amendment

claim proves unavailing. See Bell v. Wolfish, 441 U.S. 520,

535 n.16 (1979) (“The Court of Appeals properly relied on

the Due Process Clause rather than the Eighth Amendment in

considering the claims of pretrial detainees.”); id. at 579 (Stevens, J., dissenting) (“Nor is this an Eighth Amendment Case.

That provision . . . protects individuals convicted of crimes

from punishment that is cruel and unusual. The pretrial

detainees . . . are innocent men and women who have been

4470 JONES v. CITY OF LOS ANGELES
convicted of no crimes.”). As Justice White’s concurrence in

Powell explains:

I do not question the power of the State to remove

a helplessly intoxicated person from a public street,

although against his will, and to hold him until he

has regained his powers. The person’s own safety

and the public interest require this much. A statute

such as the one challenged in this case is constitutional insofar as it authorizes a police officer to

arrest any seriously intoxicated person when he is

encountered in a public place. Whether such a person may be charged and convicted for violating the

statute will depend upon whether he is entitled to the

protection of the Eighth Amendment. 

Powell, 392 U.S. at 554 n.5 (White, J., concurring in the

result). Thus the arrests upon which Jones relies do not implicate the Eighth Amendment. 

Not only has Jones produced no evidence of present or past

Eighth Amendment violations, he has failed to show any likelihood of future violations.5

 Since 1998, California has recognized a necessity-due-to-homelessness defense to ordinances

such as LAMC § 41.18(d). See Eichorn, 69 Cal. App. 4th at

389-91. The defense encompasses the very difficulties that

Jones posits here: sleeping on the streets because alternatives

were inadequate and economic forces were primarily to blame

for his predicament. Id. at 390. Jones argues that he and other

homeless people are not willing or able to pursue such a

defense because the costs of pleading guilty are so low and

the risks and challenges of pleading innocent are substantial.

But a constitutional violation cannot turn on refusal to employ

a defense that prevents conviction. Moreover, defendants who

5This, too, calls into question the plaintiffs’ standing. See Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139-41 (9th Cir. 2000)

(en banc). 

JONES v. CITY OF LOS ANGELES 4471
do plead guilty cannot suffer Eighth Amendment harm,

because the guilty plea “is an admission of each and every

element required to establish the offense” and thus “constitutes an admission . . . [of] the requisite culpable intent” —

that is, the voluntary choice to sleep on the street and the

absence of an unavoidable compulsion to do so. See Kidder,

869 F.2d at 1332-33. 

As the Eighth Amendment does not forbid arrests, the

injunction sought by Jones extends beyond what would be

necessary to provide complete relief even if convictions under

the ordinance were unconstitutional. An injunction “should be

no more burdensome to the defendant than [is] necessary to

provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Here, there is no evidence of

Eighth Amendment harm to any of the six homeless persons

who prosecute this action and equitable relief cannot be based

on alleged injuries to others. Hodgers-Durgin v. de La Vina,

199 F.3d 1037, 1045 (9th Cir. 1999) (en banc). Therefore, the

record does not support the relief sought, even under Justice

White’s concurrence in Powell. Regardless, as a matter of

constitutional law, the Eighth Amendment could at most entitle Jones to an injunction forbidding punishment of a homeless person under the ordinance when he demonstrates a

necessity defense; however, I would decline to accord any

such relief as it would entail “intrusive and unworkable” federal oversight of state court proceedings. As the Supreme

Court explained in O’Shea v. Littleton, 414 U.S. 488 (1974),

such an injunction would not “strike down a single state statute, either on its face or as applied[, nor] enjoin any criminal

prosecutions that might be brought under a challenged criminal law,” but rather would be “aimed at controlling or preventing the occurrence of specific events that might take place

in the course of future state criminal trials.” Id. at 500. This

would run afoul of Younger v. Harris, 401 U.S. 37 (1971),

and related cases. So, too, would an injunction requiring state

courts to permit and to apply the Eichorn defense. The proper

procedure for homeless people to protect their rights would be

4472 JONES v. CITY OF LOS ANGELES
to plead “not guilty and then to challenge the constitutionality” of their conviction, either through direct appeal or collateral review, in the event their necessity defense was rejected

by the court. See Kidder, 869 F.2d at 1333. 

As the majority’s opinion seems to me contrary to the

Supreme Court’s instruction to apply Robinson sparingly, and

instead applies it expansively, I dissent. I believe the district

court correctly concluded that the substantive limits on what

can be made criminal and punished as such do not extend to

an ordinance that prohibits the acts of sleeping, sitting or

lying on City streets. Accordingly, I would affirm.

JONES v. CITY OF LOS ANGELES 4473