                   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,
                  v.                            D.C. No.
                                              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
                JONES v. CITY OF LOS ANGELES           4421


                        COUNSEL

Ben Wizner, Peter Eliasberg, and Mark D. Rosenbaum,
ACLU Foundation of Southern California, Los Angeles, Cali-
fornia; Carol A. Sobel, Law Offices of Carol A. Sobel, Santa
Monica, California; and Adam B. Wolf, Los Angeles, Califor-
nia, for the plaintiffs-appellants.

Amy Jo Field, Deputy City Attorney, Los Angeles, California,
for the defendants-appellees.
4422             JONES v. CITY OF LOS ANGELES
                          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 ordi-
nance 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 Ange-
les’s Skid Row district. Appellees are the City of Los Ange-
les, 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 individu-
al” to include

      (1) an individual who lacks a fixed, regular, and
    adequate nighttime residence; and

       (2) an individual who has a primary nighttime res-
    idence that is—

      (A) a supervised publicly or privately operated
    shelter designed to provide temporary living accom-
                JONES v. CITY OF LOS ANGELES                  4423
    modations (including welfare hotels, congregate
    shelters, and transitional housing for the mentally
    ill);

       (B) an institution that provides a temporary resi-
    dence for individuals intended to be institutionalized;
    or

       (C) a public or private place not designed for, or
    ordinarily used as, a regular sleeping accommoda-
    tion 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 cross-
wise 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 nine-
teenth century, the area now known as Los Angeles’s Skid
Row became home to a transient population of seasonal labor-
ers as residential hotels began to develop. See Mayor’s Citi-
zens’ 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 alco-
holic[s]” of Los Angeles. Id. Covering fifty city blocks imme-
diately east of downtown Los Angeles, Skid Row is bordered
4424             JONES v. CITY OF LOS ANGELES
by Third Street to the north, Seventh Street to the south, Ala-
meda 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 home-
less.

   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 Villarai-
gosa to order an investigation into the phenomenon in Sep-
tember 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 ordi-
nance at issue), has stated:
                     JONES v. CITY OF LOS ANGELES                      4425
      “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., Ordi-
nance 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 home-
less 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 Cri-
sis 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) [hereinaf-
ter 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
4426                JONES v. CITY OF LOS ANGELES
   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.’ ” Homeless-
ness Report, supra, at 80. As Los Angeles’s homeless popula-
tion 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 low-
income housing in Skid Row has shrunk, according to the
declaration of Alice Callaghan, director of a Skid Row com-
munity 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; dur-
ing 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 dem-
onstrate 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, low-
paying 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. Dyr-
ness et al., Crisis on the Streets: Homeless Women and Chil-
dren 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 sur-
veyed cities. The record includes more than a half dozen public reports
Appellants filed in support of their motion for summary judgment, without
objection.
                 JONES v. CITY OF LOS ANGELES                 4427
14% of homeless individuals in Los Angeles are victims of
domestic violence).

   Against this background, the City asserts the constitutional-
ity 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 per-
    mitted under the provisions of Section 103.111 of
    Article 2, Chapter X of this Code; nor shall the pro-
    visions of this subsection supply [sic] to persons sit-
    ting 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 sec-
tion 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 home-
less provide ways to avoid criminalizing the status of home-
lessness by making an element of the crime some conduct in
combination with sitting, lying, or sleeping in a state of home-
lessness. 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
4428                JONES v. CITY OF LOS ANGELES
“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 desig-
nated area or camping on public property). Still others contain
safe harbor provisions such as limiting the hours of enforce-
ment. 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 cit-
ies 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.
   2
     During 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.
                  JONES v. CITY OF LOS ANGELES                4429
   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 offi-
cers 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 declara-
tion, 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 sleep-
ing 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.
4430             JONES v. CITY OF LOS ANGELES
   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 look-
ing 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 indi-
viduals 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 Califor-
nia pursuant to 42 U.S.C. § 1983. They seek a permanent
injunction against the City of Los Angeles and L.A.P.D. Chief
                 JONES v. CITY OF LOS ANGELES               4431
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) twenty-
four 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 punish-
ment). Appellants abandoned their second claim pursuant to
42 U.S.C. § 1983, alleging violations of a Fourteenth Amend-
ment substantive due process right to treatment for chronic ill-
nesses while in police custody, in the district court. On cross-
motions 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 ordi-
nance 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 dis-
trict 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, For-
tyune 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 determi-
nation, 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
4432                JONES v. CITY OF LOS ANGELES
(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 judg-
ment. 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 Ven-
tures, 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, fac-
tually, and realistically untenable.3
  3
    As 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 indif-
ference.’ ” Anat Rubin, “Jobs, Not Jails,” Skid Row Protesters Shout at
                    JONES v. CITY OF LOS ANGELES                     4433
   [1] Article III of the Constitution requires a plaintiff seek-
ing 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 threat-
ened injury as a result of the putatively illegal conduct of the
defendant, and that the injury fairly can be traced to the chal-
lenged action and is likely to be redressed by a favorable deci-
sion.” 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, trigger-
ing 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 Home-
lessness & Poverty, A Dream Denied: The Criminalization of Homeless-
ness in U.S. Cities 10, 40-41 (2006).
4434             JONES v. CITY OF LOS ANGELES
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., concur-
ring in part and dissenting in part) (noting prior aggressive
prosecution under an allegedly unconstitutional law as a fac-
tor 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 enforce-
ment 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, prose-
cuted, 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 there-
fore 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
                 JONES v. CITY OF LOS ANGELES               4435
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 con-
viction. 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 pun-
ishment 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 sub-
    stantive 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 preconvic-
tion 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, con-
trary to the City’s and the dissent’s argument, Ingraham does
not establish that the Cruel and Unusual Punishment Clause
4436             JONES v. CITY OF LOS ANGELES
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 convic-
tion, and the very one Appellants seek in this case.

   The City and the dissent advance out of context the follow-
ing 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 crim-
inal process identified by the Ingraham Court: limits on the
kind and proportionality of punishment permissible postcon-
viction. 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 con-
stitutionally 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 govern-
ment 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 pro-
tections of the Clause. 251 F.3d 1230, 1238 (9th Cir. 2001).
                 JONES v. CITY OF LOS ANGELES              4437
    The Cruel and Unusual Punishment Clause’s third protec-
tion, 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 crimi-
nal law process as a whole, not only the imposition of punish-
ment 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 trans-
gresses 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 require-
ment “that the police must with reasonable promptness show
legal cause for detaining arrested persons” is part of the “pro-
cess 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 indi-
vidual 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 con-
viction a prerequisite for any type of Cruel and Unusual Pun-
ishment 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 pro-
4438              JONES v. CITY OF LOS ANGELES
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 crim-
inal statute alleged to transgress the Clause’s substantive lim-
its 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 criminal-
ization 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); Pot-
tinger 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 prohibit-
ing sleeping in public against homeless individuals with no
other place to be. Johnson v. City of Dallas, 860 F. Supp. 344,
                     JONES v. CITY OF LOS ANGELES                      4439
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 convic-
tion, the Fifth Circuit, the City, and the dissent all fail to rec-
ognize the distinction between the Cruel and Unusual
Punishment Clause’s first two protections and its third. More-
over, they ignore the imminent threat of conviction and the
evidence of actual convictions presented here.

   [7] Although a conviction is not required to establish stand-
ing 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 dem-
onstrate that judgment was pronounced and Barger was sen-
tenced by the Los Angeles County Superior Court to time
served on December 26, 2002. Similarly, judgment was pro-
nounced and Purrie was given a twelve-month suspended sen-
tence on January 15, 2003 with the condition that he “stay
away from location of arrest.”4 If a conviction is constitution-
  4
    The 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
4440                 JONES v. CITY OF LOS ANGELES
ally required, the fact that two of the six plaintiffs were con-
victed 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 argu-
ment, 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 vio-
     lated 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 circum-
     stances 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 infer-
ence can be drawn that they were unable to do so.
                 JONES v. CITY OF LOS ANGELES              4441
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 dis-
appeared 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 vio-
lating section 41.18(d). Homeless individuals, who may suffer
from mental illness, substance abuse problems, unemploy-
ment, 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 sen-
tence of time served and immediate release. Finally, one must
question the policy of arresting, jailing, and prosecuting indi-
viduals whom the City Attorney concedes cannot be con-
victed 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
4442             JONES v. CITY OF LOS ANGELES
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 Rob-
inson and Powell by another district court in Joyce v. City and
County of San Francisco, in which plaintiffs challenged cer-
tain 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 differ-
ent factual underpinning than is present here. Called the “Ma-
trix Program,” the homelessness program was “ ‘an
interdepartmental effort . . . [utilizing] social workers and
health workers . . . [and] offering shelter, medical care, infor-
mation 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 “re-
ferrals” to temporary shelters. Id. at 848. The City demon-
strated 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, sit-
ting or remaining in a public place,’ ” which might also
include such antisocial conduct as public urination and
aggressive panhandling. Id. at 851 (emphasis added). Reason-
ing 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 proceed-
ings, the district court denied the injunction. Id. at 851-53.
                  JONES v. CITY OF LOS ANGELES                  4443
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 con-
ducted 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 criminal-
ize 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 con-
dition 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 stat-
ute 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 con-
    tinues after it is complete and subjects the offender
4444             JONES v. CITY OF LOS ANGELES
    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 origi-
nal). The Supreme Court reversed Robinson’s conviction, rea-
soning:

    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 contem-
    porary human knowledge, a law which made a crim-
    inal 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 con-
    tracted 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 Amend-
    ment.

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

   [10] The Court did not articulate the principles that under-
gird 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
                 JONES v. CITY OF LOS ANGELES               4445
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 punish-
ing a person for having a venereal disease would be unconsti-
tutional, 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 opin-
ion) (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 slip-
4446             JONES v. CITY OF LOS ANGELES
pery slope concerns, id. at 534-35, and considerations of fed-
eralism 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 Robin-
son 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 involuntari-
ness of Powell’s behavior, noting that Powell had “ ‘an
uncontrollable compulsion to drink’ to the point of intoxica-
tion; 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 plurali-
ty’s proposed status-conduct distinction, finding it similar to
“forbidding criminal conviction for being sick with flu or epi-
lepsy 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 prin-
ciple that “it cannot be a crime to have an irresistible compul-
sion to use narcotics,” id. at 548, and concluded that “[t]he
proper subject of inquiry is whether volitional acts [suffi-
ciently proximate to the condition] brought about the” crimi-
nalized conduct or condition, id. at 550 n.2.
                  JONES v. CITY OF LOS ANGELES                4447
  Justice White concluded that given the holding in Robin-
son, “the chronic alcoholic with an irresistible urge to con-
sume 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 stan-
dard, 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 condi-
tion, but rather a conviction for the regular, repeated or habit-
ual 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 substan-
tial 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 self-
control, 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
4448             JONES v. CITY OF LOS ANGELES
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 ‘avoid-
ing public places when intoxicated’ on the occasion in ques-
tion were ‘impossible.’ ”).

   Second, Justice White rejected the dissent’s attempt to dis-
tinguish conditions from acts for Eighth Amendment pur-
poses. 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 vio-
late 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).
                  JONES v. CITY OF LOS ANGELES               4449
   [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 conse-
quence 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 consider-
ation 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) (inter-
nal quotation marks omitted); see also Kent Greenawalt, “Un-
controllable” 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.”).
4450             JONES v. CITY OF LOS ANGELES
   [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 deter-
mining 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 suffi-
ciently 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) (Black-
mun, 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, Appel-
lants are in a chronic state that may have been acquired “inno-
cently 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).
                  JONES v. CITY OF LOS ANGELES               4451
   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 involun-
tary 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 consider-
ation 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 Appel-
lants’ 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 uncon-
stitutional 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
4452             JONES v. CITY OF LOS ANGELES
state may not make it an offense to be idle, indigent, or home-
less 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 Ange-
les’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., concur-
ring 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). Simi-
larly, 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 alco-
holic’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 voli-
tional acts contributed to their current need to sit, lie, and
sleep on public sidewalks at night, those acts are not suffi-
ciently proximate to the conduct at issue here for the imposi-
tion 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 protec-
tion for conduct that a person makes unavoidable based on
their own immediately proximate voluntary acts, for example,
                 JONES v. CITY OF LOS ANGELES              4453
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 panhan-
dling 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 stat-
ute, 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 pub-
lic 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 cal-
led 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 shel-
ter 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 invol-
untary public drunkenness that is an unavoidable consequence
4454              JONES v. CITY OF LOS ANGELES
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 Ange-
les.

   [14] We do not suggest that Los Angeles adopt any particu-
lar 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 prob-
lem” in the City of Los Angeles, which the City is free to
address in any way that it sees fit, consistent with the constitu-
tional 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 enforce-
ment 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 con-
sistent with this opinion.

  REVERSED AND REMANDED.
                 JONES v. CITY OF LOS ANGELES             4455
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 Punish-
ment 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 compo-
nent 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 with-
out. 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 pun-
ished 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
4456              JONES v. CITY OF LOS ANGELES
is closely related to status may not constitutionally be pun-
ished 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 can-
not 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 with-
out 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. How-
ever, there is no showing in this case that shelter was unavail-
able 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
                 JONES v. CITY OF LOS ANGELES              4457
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 Constitu-
tion no matter how broadly the Eighth Amendment is con-
strued.

   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 sub-
ject to punishment for purposes of the Eighth Amendment on
account of any involuntary condition. They both lack stand-
ing, 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 Rob-
inson 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 child-
less 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 appar-
4458            JONES v. CITY OF LOS ANGELES
ently led to a warrant being issued for his arrest. He was
arrested pursuant to the warrant and also charged with violat-
ing 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 Ange-
les. 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 cold-
weather 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 facili-
                 JONES v. CITY OF LOS ANGELES               4459
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 home-
lessness is cognizable as a status. It agreed with Judge Jen-
sen’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 home-
less 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 pro-
hibiting 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 pun-
ishment 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
4460                 JONES v. CITY OF LOS ANGELES
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. Never-
theless, in a case such as this the standing inquiry essentially
collapses into the merits, so instead of treating the issue sepa-
rately 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 with-
out shelter every night. Jones claims that the situation is par-
ticularly 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 ordi-
nance based on being convicted for the involuntary “condition” of being
on the streets without available shelter. This is because there is no evi-
dence that shelter was unavailable when they committed the underlying
offense of sitting, sleeping or lying on City sidewalks.
                 JONES v. CITY OF LOS ANGELES               4461
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 sta-
tus alone. In Robinson, the Court reversed the conviction of
a drug addict who had been convicted of violating a Califor-
nia 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 pur-
    ports to provide or require medical treatment.
    Rather, we deal with a statute which makes the “sta-
    tus” 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 ill-
ness 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
4462              JONES v. CITY OF LOS ANGELES
behavior there, inflicts a cruel and unusual punishment . . . .”
Id. at 667.

   Jones submits that as the City could not expressly criminal-
ize the status of being homeless without offending the Eighth
Amendment, it cannot enforce the ordinance when the num-
ber of homeless persons exceeds the number of available shel-
ter 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 home-
less 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, Pot-
tinger’s extension of the Eighth Amendment to conduct that
is derivative of status takes the substantive limits on criminal-
ity 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 princi-
ples 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:
                 JONES v. CITY OF LOS ANGELES                 4463
       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 crim-
inal 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 crimi-
    nal 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 per-
    haps in historical common law terms, has committed
    some actus reus. It thus does not deal with the ques-
    tion of whether certain conduct cannot constitution-
    ally 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 con-
victed 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
4464              JONES v. CITY OF LOS ANGELES
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 alco-
holism 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 plu-
rality, 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 intoxi-
cated and being found in a public place while in that condi-
tion), 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 Gra-
ham 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)).
                 JONES v. CITY OF LOS ANGELES                4465
After surveying its “cruel and unusual punishment” jurispru-
dence, the Court remarked that

    these decisions recognize that the Cruel and Unusual
    Punishments Clause circumscribes the criminal pro-
    cess in three ways. First, it limits the kinds of pun-
    ishment that can be imposed on those convicted of
    crimes; second, it proscribes punishment grossly dis-
    proportionate 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, limita-
tion, 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 docu-
ments. 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).
4466                JONES v. CITY OF LOS ANGELES
   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 pun-
ished 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 involun-
tary 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.2 Id. 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 convic-
tion 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.” Kid-
der, 869 F.2d at 1333.
                     JONES v. CITY OF LOS ANGELES                       4467
   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 crimi-
nalization 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 Robin-
son this way, and in a view that is binding on us now, we pre-
viously 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 crimi-
nal 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
  3
    Neither 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.
4468                JONES v. CITY OF LOS ANGELES
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 con-
  4
    This 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., Home-
less in LA: Final Research Report for the 10-Year Plan to End Homeless-
ness 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.)
                 JONES v. CITY OF LOS ANGELES               4469
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 con-
curring 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 conse-
quences 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.
4470             JONES v. CITY OF LOS ANGELES
   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 Amend-
ment 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 John-
son, 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 major-
ity 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, lib-
erty 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 Amend-
ment 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 (Ste-
vens, 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
                   JONES v. CITY OF LOS ANGELES                    4471
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 constitu-
      tional insofar as it authorizes a police officer to
      arrest any seriously intoxicated person when he is
      encountered in a public place. Whether such a per-
      son 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 impli-
cate the Eighth Amendment.

   Not only has Jones produced no evidence of present or past
Eighth Amendment violations, he has failed to show any like-
lihood of future violations.5 Since 1998, California has recog-
nized 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
  5
   This, 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).
4472             JONES v. CITY OF LOS ANGELES
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 “consti-
tutes 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. Yama-
saki, 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 enti-
tle Jones to an injunction forbidding punishment of a home-
less 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” fed-
eral 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 stat-
ute, either on its face or as applied[, nor] enjoin any criminal
prosecutions that might be brought under a challenged crimi-
nal law,” but rather would be “aimed at controlling or pre-
venting 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
                 JONES v. CITY OF LOS ANGELES               4473
to plead “not guilty and then to challenge the constitutionali-
ty” of their conviction, either through direct appeal or collat-
eral 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.
