Bell v. City of Boise

• Decision Date: 07 March 2013
• Docket Number: No. 11–35674.,11–35674.
• Citation: 709 F.3d 890
• Parties: Janet F. BELL; Brian S. Carson; Robert Martin; Lawrence Lee Smith; Robert Anderson; Pamela S. Hawkes; James M. Godfrey; Basil E. Humphrey, Plaintiffs–Appellants, v. CITY OF BOISE; Boise Police Department; Michael Masterson, in his official capacity as Chief of Police, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

709 F.3d 890

Janet F. BELL; Brian S. Carson; Robert Martin; Lawrence Lee Smith; Robert Anderson; Pamela S. Hawkes; James M. Godfrey; Basil E. Humphrey, Plaintiffs–Appellants,

v.CITY OF BOISE; Boise Police Department; Michael Masterson, in his official capacity as Chief of Police, Defendants–Appellees.

No. 11–35674.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 7, 2012.

Filed March 7, 2013.

Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise, ID, for Plaintiffs–Appellants.

Scott B. Muir, Assistant City Attorney, Boise City Attorney's Office, Boise, ID, for Defendants–Appellees.

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

Before: SUSAN H. BLACK,^*SUSAN P. GRABER, and JOHNNIE B. RAWLINSON, Circuit Judges.

OPINION

BLACK, Circuit Judge:

Plaintiffs appeal the court's ¹ order granting summary judgment to Defendants City of Boise, Boise Police Department, and Michael Masterson in his official capacity as Chief of Police. Plaintiffs' amended complaint, brought pursuant to 42 U.S.C. § 1983, alleged Defendants enforced two local ordinances in violation of the Eighth Amendment to the Constitution. The court held the Rooker–Feldman² doctrine deprived it of subject matter jurisdiction over Plaintiffs' claims for retrospective relief. The court also found Plaintiffs' claims for prospective injunctive and declaratory relief “largely moot” because the City of Boise amended one ordinance and the Chief of Police issued an internal policy regarding the enforcement of both ordinances.

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

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs Robert Anderson, Janet Bell, Brian Carson, Pamela Hawkes, Basil Humphrey, Robert Martin, and Lawrence Lee Smith are individuals who either are or have been homeless in Boise. Plaintiffs have all been cited or arrested for violating one or both of the local ordinances at issue on appeal.³

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

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

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

Between 2007 and 2009, Plaintiffs Carson, Hawkes, and Martin were cited for violating Boise City Code § 6–01–05(A) (the Sleeping Ordinance). The Sleeping Ordinance criminalizes as a misdemeanor “disorderly conduct,” which includes “[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof.” Boise City Code § 6–01–05(A).

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

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

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

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

Boise City Code § 9–10–02 (2009).

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

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

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

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

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

With respect to nighttime enforcement of both Ordinances, the court held that Plaintiffs' Eighth Amendment claims for prospective relief were mooted by the adoption of the Special Order. The court reasoned that the adoption of the Special Order allowed the homeless to sleep in parks at night if shelter space was unavailable, which made it “no longer reasonable to expect that the Boise Police...