                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROBERT MARTIN; LAWRENCE LEE              No. 15-35845
SMITH; ROBERT ANDERSON; JANET
F. BELL; PAMELA S. HAWKES; and              D.C. No.
BASIL E. HUMPHREY,                       1:09-cv-00540-
              Plaintiffs-Appellants,          REB

                  v.
                                         ORDER AND
CITY OF BOISE,                            AMENDED
                 Defendant-Appellee.       OPINION


     Appeal from the United States District Court
               for the District of Idaho
   Ronald E. Bush, Chief Magistrate Judge, Presiding

          Argued and Submitted July 13, 2017
                  Portland, Oregon

                   Filed April 1, 2019

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

                         Order;
         Concurrence in Order by Judge Berzon;
     Dissent to Order by Judge Milan D. Smith, Jr.;
           Dissent to Order by Judge Bennett;
               Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Owens
2                   MARTIN V. CITY OF BOISE

                            SUMMARY*


                             Civil Rights

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

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

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




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  MARTIN V. CITY OF BOISE                      3

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

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

    Turning to the merits, the panel held that the Cruel and
Unusual Punishments Clause of the Eighth Amendment
precluded the enforcement of a statute prohibiting sleeping
outside against homeless individuals with no access to
alternative shelter. The panel held that, as long as there is no
option of sleeping indoors, the government cannot criminalize
indigent, homeless people for sleeping outdoors, on public
property, on the false premise they had a choice in the matter.

    Concurring in part and dissenting in part, Judge Owens
disagreed with the majority’s opinion that Heck v. Humphrey
did not bar plaintiffs’ claim for declaratory and injunctive
relief. Judge Owens stated that a declaration that the city
ordinances are unconstitutional and an injunction against their
future enforcement would necessarily demonstrate the
4                MARTIN V. CITY OF BOISE

invalidity of plaintiffs’ prior convictions. Judge Owens
otherwise joined the majority in full.

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

    Dissenting from the denial of rehearing en banc, Judge M.
Smith, joined by Judges Callahan, Bea, Ikuta, Bennett and R.
Nelson, stated that the panel severely misconstrued three
areas of binding Supreme Court precedent, and that the
panel's opinion created several splits with other appellate
courts. Judge M. Smith further stated that the panel's holding
has already begun wreaking havoc on local governments,
residents, and businesses throughout the circuit. Judge M.
Smith stated that the panel’s reasoning will soon prevent local
governments from enforcing a host of other public health and
safety laws, such as those prohibiting public defecation and
urination, and that the panel’s opinion shackles the hands of
public officials trying to redress the serious societal concern
of homelessness.
                 MARTIN V. CITY OF BOISE                    5

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


                        COUNSEL

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

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

                           ORDER

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

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

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



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

    I strongly disfavor this circuit’s innovation in en banc
procedure—ubiquitous dissents in the denial of rehearing en
banc, sometimes accompanied by concurrences in the denial
of rehearing en banc. As I have previously explained, dissents
in the denial of rehearing en banc, in particular, often engage
in a “distorted presentation of the issues in the case, creating
the impression of rampant error in the original panel opinion
although a majority—often a decisive majority—of the active
members of the court . . . perceived no error.” Defs. of
Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394,
402 (9th Cir. 2006) (Berzon, J., concurring in denial of
                  MARTIN V. CITY OF BOISE                        7

rehearing en banc); see also Marsha S. Berzon, Dissent,
“Dissentals,” and Decision Making, 100 Calif. L. Rev. 1479
(2012). Often times, the dramatic tone of these dissents leads
them to read more like petitions for writ of certiorari on
steroids, rather than reasoned judicial opinions.

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

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

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

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

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

     For starters, the picture is not in the record of this case
and is thus inappropriately included in the dissent. It is not
the practice of this circuit to include outside-the-record
photographs in judicial opinions, especially when such
photographs are entirely unrelated to the case. And in this
instance, the photograph is entirely unrelated. It depicts a
sidewalk in Los Angeles, not a location in the City of Boise,
the actual municipality at issue. Nor can the photograph be
said to illuminate the impact of Martin within this circuit, as
it predates our decision and was likely taken in 2017.1




    1
       Although Judge M. Smith does not credit the photograph to any
source, an internet search suggests that the original photograph is
attributable to Los Angeles County. See Implementing the Los Angeles
County Homelessness Initiative, L.A. County, http://homeless.lacounty.
gov/implementing-the-los-angeles-county-homeless-initiative/ [https://
                    MARTIN V. CITY OF BOISE                             9

      But even putting aside the use of a pre-Martin, outside-
the-record photograph from another municipality, the
photograph does not serve to illustrate a concrete effect of
Martin’s holding. The opinion clearly states that it is not
outlawing ordinances “barring the obstruction of public rights
of way or the erection of certain structures,” such as tents, id.
at 1048 n.8, and that the holding “in no way dictate[s] to the
City that it must provide sufficient shelter for the homeless,
or allow anyone who wishes to sit, lie, or sleep on the streets
. . . at any time and at any place,” id. at 1048 (quoting Jones
v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006)).

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

    The distressing homelessness problem—distressing to the
people with nowhere to live as well as to the rest of
society—has grown into a crisis for many reasons, among
them the cost of housing, the drying up of affordable care for
people with mental illness, and the failure to provide adequate
treatment for drug addiction. See, e.g., U.S. Interagency
Council on Homelessness, Homelessness in America: Focus
on Individual Adults 5–8 (2018), https://www.usich.gov/res
ources/?uploads/asset_library/HIA_Individual_Adults.pdf.


web.archive.org/web/?20170405225036/homeless.lacounty.gov/implem
enting-the-los-angeles-county-homeless-initiative/#]; see also Los Angeles
County (@CountyofLA), Twitter (Nov. 29, 2017, 3:23 PM),
https://twitter.com/CountyofLA/status/936012841533894657.
10                MARTIN V. CITY OF BOISE

The crisis continued to burgeon while ordinances forbidding
sleeping in public were on the books and sometimes enforced.
There is no reason to believe that it has grown, and is likely
to grow larger, because Martin held it unconstitutional to
criminalize simply sleeping somewhere in public if one has
nowhere else to do so.

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



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

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

     1
      With almost 553,000 people who experienced homelessness
nationwide on a single night in January 2018, this issue affects
communities across our country. U.S. Dep’t of Hous. & Urban Dev.,
                     MARTIN V. CITY OF BOISE                           11

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

                                    I.

    The most harmful aspect of the panel’s opinion is its
misreading of Eighth Amendment precedent. My colleagues
cobble together disparate portions of a fragmented Supreme
Court opinion to hold that “an ordinance violates the Eighth
Amendment insofar as it imposes criminal sanctions against
homeless individuals for sleeping outdoors, on public
property, when no alternative shelter is available to them.”
Martin v. City of Boise, 902 F.3d 1031, 1035 (9th Cir. 2018).
That holding is legally and practically ill-conceived, and
conflicts with the reasoning of every other appellate court2
that has considered the issue.

                                    A.

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

   To understand Powell, we must begin with the Court’s
decision in Robinson v. California, 370 U.S. 660 (1962).
There, the Court addressed a statute that made it a “criminal


Office of Cmty. Planning & Dev., The 2018 Annual Homeless
Assessment Report (AHAR) to Congress 1 (Dec. 2018),
https://www.hudexchange.info/resources/documents/2018-AHAR-Part-
1.pdf.
    2
      Our court previously adopted the same Eighth Amendment holding
as the panel in Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir.
2006), but that decision was later vacated. 505 F.3d 1006 (9th Cir. 2007).
12               MARTIN V. CITY OF BOISE

offense for a person to ‘be addicted to the use of narcotics.’”
Robinson, 370 U.S. at 660 (quoting Cal. Health & Safety
Code § 11721). The statute allowed defendants to be
convicted so long as they were drug addicts, regardless of
whether they actually used or possessed drugs. Id. at 665.
The Court struck down the statute under the Eighth
Amendment, reasoning that because “narcotic addiction is an
illness . . . which may be contracted innocently or
involuntarily . . . a state law which imprisons a person thus
afflicted as criminal, even though he has never touched any
narcotic drug” violates the Eighth Amendment. Id. at 667.

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

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

    Justice White concurred in the judgment. He upheld the
defendant’s conviction because Powell had not made a
                 MARTIN V. CITY OF BOISE                    13

showing that he was unable to stay off the streets on the night
he was arrested. Id. at 552–53 (White, J., concurring in the
result). He wrote that it was “unnecessary to pursue at this
point the further definition of the circumstances or the state
of intoxication which might bar conviction of a chronic
alcoholic for being drunk in a public place.” Id. at 553.

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

    Because Powell was a 4–1–4 decision, the Supreme
Court’s decision in Marks v. United States guides our
analysis. 430 U.S. 188 (1977). There, the Court held that
“[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five
Justices, ‘the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds.’” Id. at 193 (quoting
Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality
opinion)) (emphasis added). When Marks is applied to
Powell, the holding is clear: The defendant’s conviction was
constitutional because it involved the commission of an act.
Nothing more, nothing less.

    This is hardly a radical proposition. I am not alone in
recognizing that “there is definitely no Supreme Court
holding” prohibiting the criminalization of involuntary
conduct. United States v. Moore, 486 F.2d 1139, 1150 (D.C.
Cir. 1973) (en banc). Indeed, in the years since Powell was
decided, courts—including our own—have routinely upheld
state laws that criminalized acts that were allegedly
14                  MARTIN V. CITY OF BOISE

compelled or involuntary. See, e.g., United States v. Stenson,
475 F. App’x 630, 631 (7th Cir. 2012) (holding that it was
constitutional for the defendant to be punished for violating
the terms of his parole by consuming alcohol because he “was
not punished for his status as an alcoholic but for his
conduct”); Joshua v. Adams, 231 F. App’x 592, 594 (9th Cir.
2007) (“Joshua also contends that the state court ignored his
mental illness [schizophrenia], which rendered him unable to
control his behavior, and his sentence was actually a penalty
for his illness . . . . This contention is without merit because,
in contrast to Robinson, where a statute specifically
criminalized addiction, Joshua was convicted of a criminal
offense separate and distinct from his ‘status’ as a
schizophrenic.”); United States v. Benefield, 889 F.2d 1061,
1064 (11th Cir. 1989) (“The considerations that make any
incarceration unconstitutional when a statute punishes a
defendant for his status are not applicable when the
government seeks to punish a person’s actions.”).3

    To be sure, Marks is controversial. Last term, the Court
agreed to consider whether to abandon the rule Marks
established (but ultimately resolved the case on other grounds
and found it “unnecessary to consider . . . the proper
application of Marks”). Hughes v. United States, 138 S. Ct.
1765, 1772 (2018). At oral argument, the Justices criticized
the logical subset rule established by Marks for elevating the
outlier views of concurring Justices to precedential status.4


     3
      That most of these opinions were unpublished only buttresses my
point: It is uncontroversial that Powell does not prohibit the
criminalization of involuntary conduct.
     4
       Transcript of Oral Argument at 14, Hughes v. United States, 138 S.
Ct. 1765 (2018) (No. 17-155).
                     MARTIN V. CITY OF BOISE                       15

The Court also acknowledged that lower courts have
inconsistently interpreted the holdings of fractured decisions
under Marks.5

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

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

   But the Court has repeatedly discouraged us from making
such predictions when construing precedent. See Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). And, for good reason. Predictions about how


    5
        Id. at 49.
    6
       Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev.
(forthcoming 2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_i
d=3090620.
16               MARTIN V. CITY OF BOISE

Justices will rule rest on unwarranted speculation about what
goes on in their minds. Such amateur fortunetelling also
precludes us from considering new insights on the
issues—difficult as they may be in the case of 4–1–4
decisions like Powell—that have arisen since the Court’s
fragmented opinion. See E.I. du Pont de Nemours & Co. v.
Train, 430 U.S. 112, 135 n.26 (1977) (noting “the wisdom of
allowing difficult issues to mature through full consideration
by the courts of appeals”).

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

                             B.

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

    The California Supreme Court, in Tobe v. City of Santa
Ana, rejected the plaintiffs’ Eighth Amendment challenge to
a city ordinance that banned public camping. 892 P.2d 1145
(1995). The court reached that conclusion despite evidence
that, on any given night, at least 2,500 homeless persons in
the city did not have shelter beds available to them. Id. at
1152. The court sensibly reasoned that because Powell was
a fragmented opinion, it did not create precedent on “the
question of whether certain conduct cannot constitutionally
be punished because it is, in some sense, ‘involuntary’ or
‘occasioned by a compulsion.’” Id. at 1166 (quoting Powell,
392 U.S. at 533). Our panel—bound by the same Supreme
Court precedent—invalidates identical California ordinances
                     MARTIN V. CITY OF BOISE                           17

previously upheld by the California Supreme Court. Both
courts cannot be correct.

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

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

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

    7
      Justice Black has also observed that solutions for challenging social
issues should be left to the policymakers:

         I cannot say that the States should be totally barred
         from one avenue of experimentation, the criminal
         process, in attempting to find a means to cope with this
         difficult social problem . . . . [I]t seems to me that the
18                  MARTIN V. CITY OF BOISE

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

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


         present use of criminal sanctions might possibly be
         unwise, but I am by no means convinced that any use of
         criminal sanctions would inevitably be unwise or,
         above all, that I am qualified in this area to know what
         is legislatively wise and what is legislatively unwise.

Powell, 392 U.S. at 539–40 (Black, J., concurring).
     8
     Pursuant to Fourth Circuit Local Rule 35(c), “[g]ranting of rehearing
en banc vacates the previous panel judgment and opinion.” I mention
Manning, however, as an illustration of other courts’ reasoning on the
Eighth Amendment issue.
                  MARTIN V. CITY OF BOISE                      19

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

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

                               C.

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

    The panel opinion masquerades its decision as a narrow
one by representing that it “in no way dictate[s] to the City
that it must provide sufficient shelter for the homeless, or
allow anyone who wishes to sit, lie, or sleep on the streets . . .
at any time and at any place.” Martin, 902 F.3d at 1048
(quoting Jones v. City of Los Angeles, 444 F.3d 1118, 1138
(9th Cir. 2006)).
20               MARTIN V. CITY OF BOISE

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

                          *   *    *

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

    The number of homeless individuals within a
municipality on any given night is not automatically reported
and updated in real time. Instead, volunteers or government
employees must painstakingly tally the number of homeless
individuals block by block, alley by alley, doorway by
doorway. Given the daily fluctuations in the homeless
population, the panel’s opinion would require this labor-
intensive task be done every single day. Yet in massive cities
such as Los Angeles, that is simply impossible. Even when
thousands of volunteers devote dozens of hours to such “a
herculean task,” it takes three days to finish counting—and
                     MARTIN V. CITY OF BOISE                            21

even then “not everybody really gets counted.”9 Lest one
think Los Angeles is unique, our circuit is home to many of
the largest homeless populations nationwide.10

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




    9
      Matt Tinoco, LA Counts Its Homeless, But Counting Everybody Is
Virtually Impossible, LAist (Jan. 22, 2019, 2:08 PM),
https://laist.com/2019/01/22/los_angeles_homeless_count_2019_how_v
olunteer.php. The panel conceded the imprecision of such counts in its
opinion. See Martin, 902 F.3d at 1036 n.1 (acknowledging that the count
of homeless individuals “is not always precise”). But it went on to
disregard that fact when tying a city’s ability to enforce its laws to these
counts.
    10
        The U.S. Department of Housing and Urban Development’s 2018
Annual Homeless Assessment Report to Congress reveals that
municipalities within our circuit have among the highest homeless
populations in the country. In Los Angeles City and County alone, 49,955
people experienced homelessness in 2018. The number was 12,112 people
in Seattle and King County, Washington, and 8,576 people in San Diego
City and County, California. See supra note 1, at 18, 20. In 2016, Las
Vegas had an estimated homeless population of 7,509 individuals, and
California’s Santa Clara County had 6,556. Joaquin Palomino, How Many
People Live On Our Streets?, S.F. Chronicle (June 28, 2016),
https://projects.sfchronicle.com/sf-homeless/numbers.
22                    MARTIN V. CITY OF BOISE

    And what if local governments (understandably) lack the
resources necessary for such a monumental task?11 They
have no choice but to stop enforcing laws that prohibit public
sleeping and camping.12 Accordingly, our panel’s decision


     11
        Cities can instead provide sufficient housing for every homeless
individual, but the cost would be prohibitively expensive for most local
governments. Los Angeles, for example, would need to spend $403.4
million to house every homeless individual not living in a vehicle. See
Los Angeles Homeless Services Authority, Report on Emergency
Fr amework to Ho melessness P lan 1 3 (J une 20 1 8) ,
https://assets.documentcloud.org/documents/4550980/LAHSA-Sheltering-
Report.pdf. In San Francisco, building new centers to provide a mere 400
additional shelter spaces was estimated to cost between $10 million and
$20 million, and would require $20 million to $30 million to operate each
year. See Heather Knight, A Better Model, A Better Result?, S.F.
Chronicle (June 29, 2016), https://projects.sfchronicle.com/sf-
homeless/shelters. Perhaps these staggering sums are why the panel went
out of its way to state that it “in no way dictate[s] to the City that it must
provide sufficient shelter for the homeless.” Martin, 902 F.3d at 1048.
     12
        Indeed, in the few short months since the panel’s decision, several
cities have thrown up their hands and abandoned any attempt to enforce
such laws. See, e.g., Cynthia Hubert, Sacramento County Cleared
Homeless Camps All Year. Now It Has Stopped Citing Campers,
Sacramento Bee (Sept. 18, 2019, 4:27 PM), https://www.sacbee.com/ne
ws/local/homeless/article218605025.html (“Sacramento County park
rangers have suddenly stopped issuing citations altogether after a federal
court ruling this month.”); Michael Ellis Langley, Policing Homelessness,
Golden State Newspapers (Feb. 22, 2019), http://www.goldenstatenews
papers.com/tracy_press/news/policing-homelessness/article_5fe6a9ca-
3642-11e9-9b25-37610ef2dbae.html (Sheriff Pat Withrow stating that,
“[a]s far as camping ordinances and things like that, we’re probably
holding off on [issuing citations] for a while” in light of Martin v. City of
Boise); Kelsie Morgan, Moses Lake Sees Spike in Homeless Activity
Following 9th Circuit Court Decision, KXLY (Oct. 2, 2018, 12:50 PM),
https://www.kxly.com/news/moses-lake-sees-spike-in-homeless-activity-
following-9th-circuit-court-decision/801772571 (“Because the City of
Moses Lake does not currently have a homeless shelter, city officials can
                    MARTIN V. CITY OF BOISE                          23

effectively allows homeless individuals to sleep and live
wherever they wish on most public property. Without an
absolute confidence that they can house every homeless
individual, city officials will be powerless to assist residents
lodging valid complaints about the health and safety of their
neighborhoods.13

    As if the panel’s actual holding wasn’t concerning
enough, the logic of the panel’s opinion reaches even further
in scope. The opinion reasons that because “resisting the
need to . . . engage in [] life-sustaining activities is
impossible,” punishing the homeless for engaging in those
actions in public violates the Eighth Amendment. Martin,
902 F.3d at 1048. What else is a life-sustaining activity?
Surely bodily functions. By holding that the Eighth
Amendment proscribes the criminalization of involuntary
conduct, the panel’s decision will inevitably result in the


no longer penalize people for sleeping in public areas.”); Brandon Pho,
Buena Park Residents Express Opposition to Possible Homeless Shelter,
Voice of OC (Feb. 14, 2019), https://voiceofoc.org/2019/02/buena-park-
residents-express-opposition-to-possible-homeless-shelter/ (stating that
Judge David Carter of the U.S. District Court for the Central District of
California has “warn[ed] Orange County cities to get more shelters online
or risk the inability the enforce their anti-camping ordinances”); Nick
Welsh, Court Rules to Protect Sleeping in Public: Santa Barbara City
Parks Subject of Ongoing Debate, Santa Barbara Indep. (Oct. 31, 2018),
http://www.independent.com/news/2018/oct/31/court-rules-protect-
sleeping-public/?jqm (“In the wake of what’s known as ‘the Boise
decision,’ Santa Barbara city police found themselves scratching their
heads over what they could and could not issue citations for.”).
    13
        In 2017, for example, San Francisco received 32,272 complaints
about homeless encampments to its 311-line. Kevin Fagan, The Situation
On Th e S t r e ets, S.F. Chr o nicle ( J une 2 8 , 20 1 8) ,
https://projects.sfchronicle.com/sf-homeless/2018-state-of-homelessness.
24                  MARTIN V. CITY OF BOISE

striking down of laws that prohibit public defecation and
urination.14 The panel’s reasoning also casts doubt on public
safety laws restricting drug paraphernalia, for the use of
hypodermic needles and the like is no less involuntary for the
homeless suffering from the scourge of addiction than is their
sleeping in public.

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




     14
       See Heater Knight, It’s No Laughing Matter—SF Forming Poop
Patrol to Keep Sidewalks Clean, S.F. Chronicle (Aug. 14, 2018),
https://www.sfchronicle.com/bayarea/heatherknight/article/It-s-no-
laughing-matter-SF-forming-Poop-13153517.php.
     15
       See Anna Gorman and Kaiser Health News, Medieval Diseases Are
Infecting California’s Homeless, The Atlantic (Mar. 8, 2019),
https://www.theatlantic.com/health/archive/2019/03/typhus-tuberculosis-
medieval-diseases-spreading-homeless/584380/ (describing the recent
outbreaks of typhus, Hepatitis A, and shigellosis as “disaster[s] and [a]
public-health crisis” and noting that such “diseases spread quickly and
widely among people living outside or in shelters”).
                    MARTIN V. CITY OF BOISE                          25

equipped with mini refrigerators, cupboards, televisions, and
heaters, [that] vie with pedestrian traffic” and “human waste
appearing on sidewalks and at local playgrounds.”16




                     A Los Angeles Public Sidewalk


                                  II.

   The panel’s fanciful merits-determination is accompanied
by a no-less-inventive series of procedural rulings. The
panel’s opinion also misconstrues two other areas of Supreme
Court precedent concerning limits on the parties who can


    16
         Scott Johnson and Peter Kiefer, LA’s Battle for Venice Beach:
Homeless Surge Puts Hollywood’s Progressive Ideals to the Test,
H o l l ywo o d R e p o r t e r ( J a n . 1 1 , 2 0 1 9 , 6 : 0 0 A M ) ,
https://www.hollywoodreporter.com/features/las-homeless- surge-puts-
hollywoods-progressive-ideals-test-1174599.
26               MARTIN V. CITY OF BOISE

bring § 1983 challenges for violations of the Eighth
Amendment.

                              A.

    The panel erred in holding that Robert Martin and Robert
Anderson could obtain prospective relief under Heck v.
Humphrey and its progeny. 512 U.S. 477 (1994). As
recognized by Judge Owens’s dissent, that conclusion cuts
against binding precedent on the issue.

     The Supreme Court has stated that Heck bars § 1983
claims if success on that claim would “necessarily
demonstrate the invalidity of [the plaintiff’s] confinement or
its duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005);
see also Edwards v. Balisok, 520 U.S. 641, 648 (1997)
(stating that Heck applies to claims for declaratory relief).
Martin and Anderson’s prospective claims did just that.
Those plaintiffs sought a declaration that the Ordinances
under which they were convicted are unconstitutional and an
injunction against their future enforcement on the grounds of
unconstitutionality. It is clear that Heck bars these claims
because Martin and Anderson necessarily seek to demonstrate
the invalidity of their previous convictions.

    The panel opinion relies on Edwards to argue that Heck
does not bar plaintiffs’ requested relief, but Edwards cannot
bear the weight the panel puts on it. In Edwards, the plaintiff
sought an injunction that would require prison officials to
date-stamp witness statements at the time received. 520 U.S.
at 643. The Court concluded that requiring prison officials to
date-stamp witness statements did not necessarily imply the
invalidity of previous determinations that the prisoner was
                   MARTIN V. CITY OF BOISE                       27

not entitled to good-time credits, and that Heck, therefore, did
not bar prospective injunctive relief. Id. at 648.

    Here, in contrast, a declaration that the Ordinances are
unconstitutional and an injunction against their future
enforcement necessarily demonstrate the invalidity of the
plaintiffs’ prior convictions. According to data from the U.S.
Department of Housing and Urban Development, the number
of homeless individuals in Boise exceeded the number of
available shelter beds during each of the years that the
plaintiffs were cited.17 Under the panel’s holding that “the
government cannot criminalize indigent, homeless people for
sleeping outdoors, on public property” “as long as there is no
option of sleeping indoors,” that data necessarily
demonstrates the invalidity of the plaintiffs’ prior
convictions. Martin, 902 F.3d at 1048.

                                B.

    The panel also erred in holding that Robert Martin and
Pamela Hawkes, who were cited but not convicted of
violating the Ordinances, had standing to sue under the
Eighth Amendment. In so doing, the panel created a circuit
split with the Fifth Circuit.

   The panel relied on Ingraham v. Wright, 430 U.S. 651
(1977), to find that a plaintiff “need demonstrate only the


    17
       See U.S. Dep’t of Hous. & Urban Dev., PIT Data Since 2007,
https://www.hudexchange.info/resources/documents/2007-2018-PIT-
Counts-by-CoC.xlsx; U.S. Dep’t of Hous. & Urban Dev., HIC Data Since
2007, https://www.hudexchange.info/resources/documents/2007-2018-
HIC-Counts-by-CoC.xlsx. Boise is within Ada County and listed under
CoC code ID-500.
28                MARTIN V. CITY OF BOISE

initiation of the criminal process against him, not a
conviction,” to bring an Eighth Amendment challenge.
Martin, 902 F.3d at 1045. The panel cites Ingraham’s
observation that the Cruel and Unusual Punishments Clause
circumscribes the criminal process in that “it imposes
substantive limits on what can be made criminal and punished
as such.” Id. at 1046 (citing Ingraham, 430 U.S. at 667).
This reading of Ingraham, however, cherry picks isolated
statements from the decision without considering them in
their accurate context. The Ingraham Court plainly held that
“Eighth Amendment scrutiny is appropriate only after the
State has complied with the constitutional guarantees
traditionally associated with criminal prosecutions.” 430 U.S.
at 671 n.40. And, “the State does not acquire the power to
punish with which the Eighth Amendment is concerned until
after it has secured a formal adjudication of guilt.” Id.
(emphasis added). As the Ingraham Court recognized, “[T]he
decisions of [the Supreme] Court construing the proscription
against cruel and unusual punishment confirms that it was
designed to protect those convicted of crimes.” Id. at 664
(emphasis added). Clearly, then, Ingraham stands for the
proposition that to challenge a criminal statute as violative of
the Eighth Amendment, the individual must be convicted of
that relevant crime.

    The Fifth Circuit recognized this limitation on standing in
Johnson v. City of Dallas, 61 F.3d 442 (5th Cir. 1995).
There, the court confronted a similar action brought by
homeless individuals challenging a sleeping in public
ordinance. Johnson, 61 F.3d at 443. The court held that the
plaintiffs did not have standing to raise an Eighth
Amendment challenge to the ordinance because although
“numerous tickets ha[d] been issued . . . [there was] no
indication that any Appellees ha[d] been convicted” of
                  MARTIN V. CITY OF BOISE                      29

violating the sleeping in public ordinance. Id. at 445. The
Fifth Circuit explained that Ingraham clearly required a
plaintiff be convicted under a criminal statute before
challenging that statute’s validity. Id. at 444–45 (citing
Robinson, 370 U.S. at 663; Ingraham, 430 U.S. at 667).

    By permitting Martin and Hawkes to maintain their
Eighth Amendment challenge, the panel’s decision created a
circuit split with the Fifth Circuit and took our circuit far
afield from “[t]he primary purpose of (the Cruel and Unusual
Punishments Clause) . . . [which is] the method or kind of
punishment imposed for the violation of criminal statutes.”
Ingraham, 430 U.S. at 667 (quoting Powell, 392 U.S.
at 531–32.

                               III.

    None of us is blind to the undeniable suffering that the
homeless endure, and I understand the panel’s impulse to help
such a vulnerable population. But the Eighth Amendment is
not a vehicle through which to critique public policy choices
or to hamstring a local government’s enforcement of its
criminal code. The panel’s decision, which effectively strikes
down the anti-camping and anti-sleeping Ordinances of Boise
and that of countless, if not all, cities within our jurisdiction,
has no legitimate basis in current law.

    I am deeply concerned about the consequences of our
panel’s unfortunate opinion, and I regret that we did not vote
to reconsider this case en banc. I respectfully dissent.
30                MARTIN V. CITY OF BOISE

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

    I fully join Judge M. Smith’s opinion dissenting from the
denial of rehearing en banc. I write separately to explain that
except in extraordinary circumstances not present in this case,
and based on its text, tradition, and original public meaning,
the Cruel and Unusual Punishments Clause of the Eighth
Amendment does not impose substantive limits on what
conduct a state may criminalize.

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

                               I.

    The text of the Cruel and Unusual Punishments Clause is
virtually identical to Section 10 of the English Declaration of
                    MARTIN V. CITY OF BOISE                          31

Rights of 1689,1 and there is no question that the drafters of
the Eighth Amendment were influenced by the prevailing
interpretation of Section 10. See Solem v. Helm, 463 U.S.
277, 286 (1983) (observing that one of the themes of the
founding era “was that Americans had all the rights of
English subjects” and the Framers’ “use of the language of
the English Bill of Rights is convincing proof that they
intended to provide at least the same protection”); Timbs v.
Indiana, 586 U.S. ___ (2019) (Thomas, J., concurring)
(“[T]he text of the Eighth Amendment was ‘based directly on
. . . the Virginia Declaration of Rights,’ which ‘adopted
verbatim the language of the English Bill of Rights.’”
(quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 266 (1989)). Thus, “not only is
the original meaning of the 1689 Declaration of Rights
relevant, but also the circumstances of its enactment, insofar
as they display the particular ‘rights of English subjects’ it
was designed to vindicate.” Harmelin v. Michigan, 501 U.S.
957, 967 (1991) (Scalia, J., concurring).

    Justice Scalia’s concurrence in Harmelin provides a
thorough and well-researched discussion of the original
public meaning of the Cruel and Unusual Punishments
Clause, including a detailed overview of the history of
Section 10 of the English Declaration of Rights. See id. at
966–85 (Scalia, J., concurring). Rather than reciting Justice
Scalia’s Harmelin discussion in its entirety, I provide only a
broad description of its historical analysis. Although the issue
Justice Scalia confronted in Harmelin was whether the


    1
      1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large 440, 441 (1689)
(Section 10 of the English Declaration of Rights) (“excessive Baile ought
not to be required, nor excessive Fines imposed; nor cruell and unusuall
Punishments inflicted.”).
32               MARTIN V. CITY OF BOISE

Framers intended to graft a proportionality requirement on
the Eighth Amendment, see id. at 976, his opinion’s historical
exposition is instructive to the issue of what the Eighth
Amendment meant when it was written.

    The English Declaration of Rights’s prohibition on “cruell
and unusuall Punishments” is attributed to the arbitrary
punishments imposed by the King’s Bench following the
Monmouth Rebellion in the late 17th century. Id. at 967
(Scalia, J., concurring). “Historians have viewed the English
provision as a reaction either to the ‘Bloody Assize,’ the
treason trials conducted by Chief Justice Jeffreys in 1685
after the abortive rebellion of the Duke of Monmouth, or to
the perjury prosecution of Titus Oates in the same year.”
Ingraham, 430 U.S. at 664 (footnote omitted).

    Presiding over a special commission in the wake of the
Monmouth Rebellion, Chief Justice Jeffreys imposed
“vicious punishments for treason,” including “drawing and
quartering, burning of women felons, beheading, [and]
disemboweling.” Harmelin, 501 U.S. at 968. In the view of
some historians, “the story of The Bloody Assizes . . . helped
to place constitutional limitations on the crime of treason and
to produce a bar against cruel and unusual Punishments.”
Furman v. Georgia, 408 U.S. 238, 254 (1972) (Douglas, J.,
concurring).

    More recent scholarship suggests that Section 10 of the
Declaration of Rights was motivated more by Jeffreys’s
treatment of Titus Oates, a Protestant cleric and convicted
perjurer. In addition to the pillory, the scourge, and life
imprisonment, Jeffreys sentenced Oates to be “stript of [his]
Canonical Habits.” Harmelin, 501 U.S. at 970 (Scalia, J.,
concurring) (quoting Second Trial of Titus Oates, 10 How. St.
                 MARTIN V. CITY OF BOISE                   33

Tr. 1227, 1316 (K.B. 1685)). Years after the sentence was
carried out, and months after the passage of the Declaration
of Rights, the House of Commons passed a bill to annul
Oates’s sentence. Though the House of Lords never agreed,
the Commons issued a report asserting that Oates’s sentence
was the sort of “cruel and unusual Punishment” that
Parliament complained of in the Declaration of Rights.
Harmelin, 501 U.S. at 972 (citing 10 Journal of the House of
Commons 247 (Aug. 2, 1689)). In the view of the Commons
and the dissenting Lords, Oates’s punishment was “‘out of the
Judges’ Power,’ ‘contrary to Law and ancient practice,’
without ‘Precedents’ or ‘express Law to warrant,’ ‘unusual,’
‘illegal,’ or imposed by ‘Pretence to a discretionary Power.’”
Id. at 973 (quoting 1 Journals of the House of Lords 367
(May 31, 1689); 10 Journal of the House of Commons 247
(Aug. 2, 1689)).

    Thus, Justice Scalia concluded that the prohibition on
“cruell and unusuall punishments” as used in the English
Declaration, “was primarily a requirement that judges
pronouncing sentence remain within the bounds of common-
law tradition.” Harmelin, 501 U.S. at 974 (Scalia, J.,
concurring) (citing Ingraham, 430 U.S. at 665; 1 J. Chitty,
Criminal Law 710–12 (5th Am. ed. 1847); Anthony F.
Granucci, Nor Cruel and Unusual Punishments Inflicted: The
Original Meaning, 57 Calif. L. Rev. 839, 859 (1969)).

    But Justice Scalia was careful not to impute the English
meaning of “cruell and unusuall” directly to the Framers of
our Bill of Rights: “the ultimate question is not what ‘cruell
and unusuall punishments’ meant in the Declaration of
Rights, but what its meaning was to the Americans who
adopted the Eighth Amendment.” Id. at 975. “Wrenched out
of its common-law context, and applied to the actions of a
34                MARTIN V. CITY OF BOISE

legislature . . . the Clause disables the Legislature from
authorizing particular forms or ‘modes’ of
punishment—specifically, cruel methods of punishment that
are not regularly or customarily employed.” Id. at 976.

    As support for his conclusion that the Framers of the Bill
of Rights intended for the Eighth Amendment to reach only
certain punishment methods, Justice Scalia looked to “the
state ratifying conventions that prompted the Bill of Rights.”
Id. at 979. Patrick Henry, speaking at the Virginia Ratifying
convention, “decried the absence of a bill of rights,” arguing
that “Congress will loose the restriction of not . . . inflicting
cruel and unusual punishments. . . . What has distinguished
our ancestors?—They would not admit of tortures, or cruel
and barbarous punishment.” Id. at 980 (quoting 3 J. Elliot,
Debates on the Federal Constitution 447 (2d ed. 1854)). The
Massachusetts Convention likewise heard the objection that,
in the absence of a ban on cruel and unusual punishments,
“racks and gibbets may be amongst the most mild instruments
of [Congress’s] discipline.” Id. at 979 (internal quotation
marks omitted) (quoting 2 J. Debates on the Federal
Constitution, at 111). These historical sources “confirm[] the
view that the cruel and unusual punishments clause was
directed at prohibiting certain methods of punishment.” Id.
(internal quotation marks omitted) (quoting Granucci,
57 Calif. L. Rev. at 842) (emphasis in Harmelin).

    In addition, early state court decisions “interpreting state
constitutional provisions with identical or more expansive
wording (i.e., ‘cruel or unusual’) concluded that these
provisions . . . proscribe[d] . . . only certain modes of
punishment.” Id. at 983; see also id. at 982 (“Many other
Americans apparently agreed that the Clause only outlawed
certain modes of punishment.”).
                 MARTIN V. CITY OF BOISE                   35

     In short, when the Framers drafted and the several states
ratified the Eighth Amendment, the original public meaning
of the Cruel and Unusual Punishments Clause was “to
proscribe . . . methods of punishment.” Estelle v. Gamble,
429 U.S. 97, 102 (1976). There is simply no indication in the
history of the Eighth Amendment that the Cruel and Unusual
Punishments Clause was intended to reach the substantive
authority of Congress to criminalize acts or status, and
certainly not before conviction. Incorporation, of course,
extended the reach of the Clause to the States, but worked no
change in its meaning.

                             II.

    The panel here held that “the Eighth Amendment
prohibits the imposition of criminal penalties for sitting,
sleeping, or lying outside on public property for homeless
individuals who cannot obtain shelter.” Martin v. City of
Boise, 902 F.3d 1031, 1048 (9th Cir. 2018). In so holding, the
panel allows challenges asserting this prohibition to be
brought in advance of any conviction. That holding, however,
has nothing to do with the punishment that the City of Boise
imposes for those offenses, and thus nothing to do with the
text and tradition of the Eighth Amendment.

   The panel pays only the barest attention to the Supreme
Court’s admonition that the application of the Eighth
Amendment to substantive criminal law be
“sparing[],”Martin, 902 F.3d at 1047 (quoting Ingraham,
430 U.S. at 667), and its holding here is dramatic in scope
and completely unfaithful to the proper interpretation of the
Cruel and Unusual Punishments Clause.
36                   MARTIN V. CITY OF BOISE

    “The primary purpose of (the Cruel and Unusual
Punishments Clause) has always been considered, and
properly so, to be directed at the method or kind of
punishment imposed for the violation of criminal statutes.”
Ingraham, 430 U.S. at 667 (internal quotation marks omitted)
(quoting Powell v. Texas, 392 U.S. 514, 531–32 (1968)). It
should, therefore, be the “rare case” where a court invokes the
Eighth Amendment’s criminalization component. Jones v.
City of Los Angeles, 444 F.3d 1118, 1146 (9th Cir. 2006)
(Rymer, J., dissenting), vacated, 505 F.3d 1006 (9th Cir.
2007).2 And permitting a pre-conviction challenge to a local
ordinance, as the panel does here, is flatly inconsistent with
the Cruel and Unusual Punishments Clause’s core
constitutional function: regulating the methods of punishment
that may be inflicted upon one convicted of an offense.
Harmelin, 501 U.S. at 977, 979 (Scalia, J., concurring). As
Judge Rymer, dissenting in Jones, observed, “the Eighth
Amendment’s ‘protections do not attach until after conviction
and sentence.’”3 444 F.3d at 1147 (Rymer, J., dissenting)


     2
      Jones, of course, was vacated and lacks precedential value. 505 F.3d
1006 (9th Cir. 2007). But the panel here resuscitated Jones’s errant
holding, including, apparently, its application of the Cruel and Unusual
Punishments Clause in the absence of a criminal conviction. We should
have taken this case en banc to correct this misinterpretation of the Eighth
Amendment.
     3
       We have emphasized the need to proceed cautiously when extending
the reach of the Cruel and Unusual Punishments Clause beyond regulation
of the methods of punishment that may be inflicted upon conviction for an
offense. See United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985)
(repeating Ingraham’s direction that “this particular use of the cruel and
unusual punishment clause is to be applied sparingly” and noting that
Robinson represents “the rare type of case in which the clause has been
used to limit what may be made criminal”); see also United States v.
Ayala, 35 F.3d 423, 426 (9th Cir. 1994) (limiting application of Robinson
                    MARTIN V. CITY OF BOISE                          37

(internal alterations omitted) (quoting Graham v. Connor,
490 U.S. 386, 392 n.6 (1989)).4

    The panel’s holding thus permits plaintiffs who have
never been convicted of any offense to avail themselves of a
constitutional protection that, historically, has been concerned
with prohibition of “only certain modes of punishment.”
Harmelin, 501 U.S. at 983; see also United States v. Quinn,
123 F.3d 1415, 1425 (11th Cir. 1997) (citing Harmelin for the
proposition that a “plurality of the Supreme Court . . . has
rejected the notion that the Eighth Amendment’s protection
from cruel and unusual punishment extends to the type of
offense for which a sentence is imposed”).

    Extending the Cruel and Unusual Punishments Clause to
encompass pre-conviction challenges to substantive criminal
law stretches the Eighth Amendment past its breaking point.
I doubt that the drafters of our Bill of Rights, the legislators
of the states that ratified it, or the public at the time would
ever have imagined that a ban on “cruel and unusual
punishments” would permit a plaintiff to challenge a
substantive criminal statute or ordinance that he or she had
not even been convicted of violating. We should have taken
this case en banc to confirm that an Eighth Amendment
challenge does not lie in the absence of a punishment
following conviction for an offense.



to crimes lacking an actus reus). The panel’s holding here throws that
caution to the wind.
    4
     Judge Friendly also expressed “considerable doubt that the cruel and
unusual punishment clause is properly applicable at all until after
conviction and sentence.” Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.
1973).
38               MARTIN V. CITY OF BOISE

                          *    *   *

    At common law and at the founding, a prohibition on
“cruel and unusual punishments” was simply that: a limit on
the types of punishments that government could inflict
following a criminal conviction. The panel strayed far from
the text and history of the Cruel and Unusual Punishments
Clause in imposing the substantive limits it has on the City of
Boise, particularly as to plaintiffs who have not yet even been
convicted of an offense. We should have reheard this case en
banc, and I respectfully dissent.



                         OPINION

BERZON, Circuit Judge:

       “The law, in its majestic equality, forbids rich
       and poor alike to sleep under bridges, to beg
       in the streets, and to steal their bread.”

                              — Anatole France, The Red Lily

    We consider whether the Eighth Amendment’s
prohibition on cruel and unusual punishment bars a city from
prosecuting people criminally for sleeping outside on public
property when those people have no home or other shelter to
go to. We conclude that it does.

    The plaintiffs-appellants are six current or former
residents of the City of Boise (“the City”), who are homeless
or have recently been homeless. Each plaintiff alleges that,
between 2007 and 2009, he or she was cited by Boise police
                 MARTIN V. CITY OF BOISE                    39

for violating one or both of two city ordinances. The first,
Boise City Code § 9-10-02 (the “Camping Ordinance”),
makes it a misdemeanor to use “any of the streets, sidewalks,
parks, or public places as a camping place at any time.” The
Camping Ordinance defines “camping” as “the use of public
property as a temporary or permanent place of dwelling,
lodging, or residence.” Id. The second, Boise City Code § 6-
01-05 (the “Disorderly Conduct Ordinance”), bans
“[o]ccupying, lodging, or sleeping in any building, structure,
or public place, whether public or private . . . without the
permission of the owner or person entitled to possession or in
control thereof.”

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

    In Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th
Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), a panel of
this court concluded that “so long as there is a greater number
of homeless individuals in Los Angeles than the number of
available beds [in shelters]” for the homeless, Los Angeles
could not enforce a similar ordinance against homeless
individuals “for involuntarily sitting, lying, and sleeping in
public.” Jones is not binding on us, as there was an
underlying settlement between the parties and our opinion
was vacated as a result. We agree with Jones’s reasoning and
central conclusion, however, and so hold that an ordinance
violates the Eighth Amendment insofar as it imposes criminal
sanctions against homeless individuals for sleeping outdoors,
on public property, when no alternative shelter is available to
them. Two of the plaintiffs, we further hold, may be entitled
40                   MARTIN V. CITY OF BOISE

to retrospective and prospective relief for violation of that
Eighth Amendment right.

                            I. Background

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

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

     1
        The United States Department of Housing and Urban Development
(“HUD”) requires local homeless assistance and prevention networks to
conduct an annual count of homeless individuals on one night each
January, known as the PIT Count, as a condition of receiving federal
funds. State, local, and federal governmental entities, as well as private
service providers, rely on the PIT Count as a “critical source of data” on
homelessness in the United States. The parties acknowledge that the PIT
Count is not always precise. The City’s Director of Community
Partnerships, Diana Lachiondo, testified that the PIT Count is “not always
the . . . best resource for numbers,” but also stated that “the point-in-time
count is our best snapshot” for counting the number of homeless
individuals in a particular region, and that she “cannot give . . . any other
number with any kind of confidence.”
                 MARTIN V. CITY OF BOISE                   41

time count will undercount the homeless population,” as
many homeless individuals may have access to temporary
housing on a given night, and as weather conditions may
affect the number of available volunteers and the number of
homeless people staying at shelters or accessing services on
the night of the count.

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

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

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

    The other two shelters in Boise are both operated by the
Boise Rescue Mission (“BRM”), a Christian nonprofit
organization. One of those shelters, the River of Life Rescue
Mission (“River of Life”), is open exclusively to men; the
other, the City Light Home for Women and Children (“City
Light”), shelters women and children only.

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

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

   Except in winter, male guests in the Emergency Services
Program may stay at River of Life for up to 17 consecutive


     2
     The record suggests that BRM provides some limited additional
non-emergency shelter programming which, like the Discipleship
Program, has overtly religious components.
     3
     The intake form states in relevant part that “We are a Gospel Rescue
Mission. Gospel means ‘Good News,’ and the Good News is that Jesus
saves us from sin past, present, and future. We would like to share the
Good News with you. Have you heard of Jesus? . . . Would you like to
know more about him?”
                    MARTIN V. CITY OF BOISE                         43

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

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

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




    4
      The parties dispute the extent to which BRM actually enforces the
17- and 30-day limits.
44               MARTIN V. CITY OF BOISE

A. The Plaintiffs

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

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

    Plaintiff Robert Martin is a former resident of Boise who
currently lives in Post Falls, Idaho. Martin returns frequently
to Boise to visit his minor son. In March of 2009, Martin was
                  MARTIN V. CITY OF BOISE                      45

cited under the Camping Ordinance for sleeping outside; he
was cited again in 2012 under the same ordinance.

B. Procedural History

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

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

     Under the Shelter Protocol, if any shelter in Boise reaches
capacity on a given night, that shelter will so notify the police
at roughly 11:00 pm. Each shelter has discretion to determine
whether it is full, and Boise police have no other mechanism
or criteria for gauging whether a shelter is full. Since the
Shelter Protocol was adopted, Sanctuary has reported that it
was full on almost 40% of nights. Although BRM agreed to
the Shelter Protocol, its internal policy is never to turn any
46                MARTIN V. CITY OF BOISE

person away because of a lack of space, and neither BRM
shelter has ever reported that it was full.

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

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

    Bell further held that the plaintiffs’ claims for prospective
relief were not moot. The City had not met its “heavy
burden” of demonstrating that the challenged conduct —
enforcement of the two ordinances against homeless
individuals with no access to shelter — “could not reasonably
be expected to recur.” Id. at 898, 901 (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)). We emphasized that the Special Order was
a statement of administrative policy and so could be amended
                  MARTIN V. CITY OF BOISE                     47

or reversed at any time by the Boise Chief of Police. Id. at
899–900.

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

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

prospective § 1983 claim would demonstrate the invalidity of
any confinement stemming from those convictions.”

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

     This appeal followed.
                     MARTIN V. CITY OF BOISE                             49

                            II. Discussion

A. Standing

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

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


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

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

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

    Although the 2014 amendments preclude the City from
enforcing the ordinances when there is no room available at
any shelter, the record demonstrates that the City is wholly
reliant on the shelters to self-report when they are full. It is
undisputed that Sanctuary is full as to men on a substantial
percentage of nights, perhaps as high as 50%. The City
nevertheless emphasizes that since the adoption of the Shelter
Protocol in 2010, the BRM facilities, River of Life and City
Light, have never reported that they are full, and BRM states
that it will never turn people away due to lack space.
                  MARTIN V. CITY OF BOISE                    51

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

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

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

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

    So, even if we credit the City’s evidence that BRM’s
facilities have never been “full,” and that the City has never
cited any person under the ordinances who could not obtain
shelter “due to a lack of shelter capacity,” there remains a
genuine issue of material fact as to whether homeless
individuals in Boise run a credible risk of being issued a
citation on a night when Sanctuary is full and they have been
denied entry to a BRM facility for reasons other than shelter
capacity. If so, then as a practical matter, no shelter is
                  MARTIN V. CITY OF BOISE                     53

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

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

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

B. Heck v. Humphrey

   We turn next to the impact of Heck v. Humphrey and its
progeny on this case. With regard to retrospective relief, the
54                 MARTIN V. CITY OF BOISE

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

     1. The Heck Doctrine

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


     7
      Plaintiff Pamela Hawkes was convicted of violating the Camping
Ordinance or Disorderly Conduct Ordinance on twelve occasions;
although she was usually sentenced to time served, she was twice
sentenced to one additional day in jail.
                 MARTIN V. CITY OF BOISE                    55

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

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

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

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

   The Supreme Court did not, in these cases or any other,
conclusively determine whether Heck’s favorable-termination
requirement applies to convicts who have no practical
opportunity to challenge their conviction or sentence via a
                  MARTIN V. CITY OF BOISE                     57

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

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

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

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

     2. Retrospective Relief

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

    Two of the plaintiffs, however, Robert Martin and Pamela
Hawkes, also received citations under the ordinances that
were dismissed before the state obtained a conviction.
Hawkes was cited for violating the Camping Ordinance on
July 8, 2007; that violation was dismissed on August 28,
2007. Martin was cited for violating the Disorderly Conduct
Ordinance on April 24, 2009; those charges were dismissed
on September 9, 2009. The complaint alleges two injuries
stemming from these dismissed citations: (1) the continued
                 MARTIN V. CITY OF BOISE                    59

inclusion of the citations on plaintiffs’ criminal records; and
(2) the accumulation of a host of criminal fines and
incarceration costs. Plaintiffs seek orders compelling the City
to “expunge[] . . . the records of any homeless individuals
unlawfully cited or arrested and charged under [the
Ordinances]” and “reimburse[] . . . any criminal fines paid
 . . . [or] costs of incarceration billed.”

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

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

   Ingraham concerned only whether “impositions outside
the criminal process” — in that case, the paddling of
schoolchildren — “constituted cruel and unusual
60               MARTIN V. CITY OF BOISE

punishment.” 430 U.S. at 667. Ingraham did not hold that a
plaintiff challenging the state’s power to criminalize a
particular status or conduct in the first instance, as the
plaintiffs in this case do, must first be convicted. If
conviction were a prerequisite for such a challenge, “the state
could in effect punish individuals in the preconviction stages
of the criminal law enforcement process for being or doing
things that under the [Cruel and Unusual Punishments
Clause] cannot be subject to the criminal process.” Jones,
444 F.3d at 1129. For those rare Eighth Amendment
challenges concerning the state’s very power to criminalize
particular behavior or status, then, a plaintiff need
demonstrate only the initiation of the criminal process against
him, not a conviction.

     3. Prospective Relief

    The district court also erred in concluding that the
plaintiffs’ requests for prospective injunctive relief were
barred by Heck. The district court relied entirely on language
in Wilkinson stating that “a state prisoner’s § 1983 action is
barred (absent prior invalidation) . . . no matter the relief
sought (damages or equitable relief) . . . if success in that
action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson, 544 U.S. at 81–82.
The district court concluded from this language in Wilkinson
that a person convicted under an allegedly unconstitutional
statute may never challenge the validity or application of that
statute after the initial criminal proceeding is complete, even
when the relief sought is prospective only and independent of
the prior conviction. The logical extension of the district
court’s interpretation is that an individual who does not
successfully invalidate a first conviction under an
unconstitutional statute will have no opportunity to challenge
                  MARTIN V. CITY OF BOISE                     61

that statute prospectively so as to avoid arrest and conviction
for violating that same statute in the future.

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

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

    The Heck doctrine, in other words, serves to ensure the
finality and validity of previous convictions, not to insulate
future prosecutions from challenge. In context, it is clear that
Wilkinson’s holding that the Heck doctrine bars a § 1983
action “no matter the relief sought (damages or equitable
relief) . . . if success in that action would necessarily
demonstrate the invalidity of confinement or its duration”
applies to equitable relief concerning an existing
confinement, not to suits seeking to preclude an
unconstitutional confinement in the future, arising from
incidents occurring after any prior conviction and stemming
from a possible later prosecution and conviction. Id. at 81–82
(emphasis added). As Wilkinson held, “claims for future
relief (which, if successful, will not necessarily imply the
invalidity of confinement or shorten its duration)” are distant
from the “core” of habeas corpus with which the Heck line of
cases is concerned, and are not precluded by the Heck
doctrine. Id. at 82.

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

C. The Eighth Amendment

    At last, we turn to the merits — does the Cruel and
Unusual Punishments Clause of the Eighth Amendment
preclude the enforcement of a statute prohibiting sleeping
outside against homeless individuals with no access to
alternative shelter? We hold that it does, for essentially the
same reasons articulated in the now-vacated Jones opinion.
                  MARTIN V. CITY OF BOISE                       63

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

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

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

the challenged statute a violation of the Eighth Amendment.
Id. at 666–67.

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

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

     The Powell plurality opinion went on to interpret
Robinson as precluding only the criminalization of “status,”
not of “involuntary” conduct. “The entire thrust of
Robinson’s interpretation of the Cruel and Unusual
Punishment Clause is that criminal penalties may be inflicted
only if the accused has committed some act, has engaged in
some behavior, which society has an interest in preventing, or
perhaps in historical common law terms, has committed some
actus reus. It thus does not deal with the question of whether
certain conduct cannot constitutionally be punished because
it is, in some sense, ‘involuntary’ . . . .” Id. at 533.
                 MARTIN V. CITY OF BOISE                   65

    Four Justices dissented from the Court’s holding in
Powell; Justice White concurred in the result alone. Notably,
Justice White noted that many chronic alcoholics are also
homeless, and that for those individuals, public drunkenness
may be unavoidable as a practical matter. “For all practical
purposes the public streets may be home for these
unfortunates, not because their disease compels them to be
there, but because, drunk or sober, they have no place else to
go and no place else to be when they are drinking. . . . For
some of these alcoholics I would think a showing could be
made that resisting drunkenness is impossible and that
avoiding public places when intoxicated is also impossible.
As applied to them this statute is in effect a law which bans
a single act for which they may not be convicted under the
Eighth Amendment — the act of getting drunk.” Id. at 551
(White, J., concurring in the judgment).

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

     This principle compels the conclusion that the Eighth
Amendment prohibits the imposition of criminal penalties for
sitting, sleeping, or lying outside on public property for
homeless individuals who cannot obtain shelter. As Jones
66                    MARTIN V. CITY OF BOISE

reasoned, “[w]hether sitting, lying, and sleeping are defined
as acts or conditions, they are universal and unavoidable
consequences of being human.” Jones, 444 F.3d at 1136.
Moreover, any “conduct at issue here is involuntary and
inseparable from status — they are one and the same, given
that human beings are biologically compelled to rest, whether
by sitting, lying, or sleeping.” Id. As a result, just as the state
may not criminalize the state of being “homeless in public
places,” the state may not “criminalize conduct that is an
unavoidable consequence of being homeless — namely
sitting, lying, or sleeping on the streets.” Id. at 1137.

     Our holding is a narrow one. Like the Jones panel, “we
in no way dictate to the City that it must provide sufficient
shelter for the homeless, or allow anyone who wishes to sit,
lie, or sleep on the streets . . . at any time and at any place.”
Id. at 1138. We hold only that “so long as there is a greater
number of homeless individuals in [a jurisdiction] than the
number of available beds [in shelters],” the jurisdiction
cannot prosecute homeless individuals for “involuntarily
sitting, lying, and sleeping in public.” Id. That is, as long as
there is no option of sleeping indoors, the government cannot
criminalize indigent, homeless people for sleeping outdoors,
on public property, on the false premise they had a choice in
the matter.8


     8
       Naturally, our holding does not cover individuals who do have
access to adequate temporary shelter, whether because they have the
means to pay for it or because it is realistically available to them for free,
but who choose not to use it. Nor do we suggest that a jurisdiction with
insufficient shelter can never criminalize the act of sleeping outside. Even
where shelter is unavailable, an ordinance prohibiting sitting, lying, or
sleeping outside at particular times or in particular locations might well be
constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might
an ordinance barring the obstruction of public rights of way or the erection
                     MARTIN V. CITY OF BOISE                           67

    We are not alone in reaching this conclusion. As one
court has observed, “resisting the need to eat, sleep or engage
in other life-sustaining activities is impossible. Avoiding
public places when engaging in this otherwise innocent
conduct is also impossible. . . . As long as the homeless
plaintiffs do not have a single place where they can lawfully
be, the challenged ordinances, as applied to them, effectively
punish them for something for which they may not be
convicted under the [E]ighth [A]mendment — sleeping,
eating and other innocent conduct.” Pottinger v. City of
Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992); see also
Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex.
1994) (holding that a “sleeping in public ordinance as applied
against the homeless is unconstitutional”), rev’d on other
grounds, 61 F.3d 442 (5th Cir. 1995).9

    Here, the two ordinances criminalize the simple act of
sleeping outside on public property, whether bare or with a


of certain structures. Whether some other ordinance is consistent with the
Eighth Amendment will depend, as here, on whether it punishes a person
for lacking the means to live out the “universal and unavoidable
consequences of being human” in the way the ordinance prescribes. Id.
at 1136.
    9
      In Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000),
the Eleventh Circuit upheld an anti-camping ordinance similar to Boise’s
against an Eighth Amendment challenge. In Joel, however, the defendants
presented unrefuted evidence that the homeless shelters in the City of
Orlando had never reached capacity and that the plaintiffs had always
enjoyed access to shelter space. Id. Those unrefuted facts were critical
to the court’s holding. Id. As discussed below, the plaintiffs here have
demonstrated a genuine issue of material fact concerning whether they
have been denied access to shelter in the past or expect to be so denied in
the future. Joel therefore does not provide persuasive guidance for this
case.
68               MARTIN V. CITY OF BOISE

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

    The Camping Ordinance criminalizes using “any of the
streets, sidewalks, parks or public places as a camping place
at any time.” Boise City Code § 9-10-02. The ordinance
defines “camping” broadly:

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

Id. It appears from the record that the Camping Ordinance is
frequently enforced against homeless individuals with some
elementary bedding, whether or not any of the other listed
                       MARTIN V. CITY OF BOISE                  69

indicia of “camping” — the erection of temporary structures,
the activity of cooking or making fire, or the storage of
personal property — are present. For example, a Boise police
officer testified that he cited plaintiff Pamela Hawkes under
the Camping Ordinance for sleeping outside “wrapped in a
blanket with her sandals off and next to her,” for sleeping in
a public restroom “with blankets,” and for sleeping in a park
“on a blanket, wrapped in blankets on the ground.” The
Camping Ordinance therefore can be, and allegedly is,
enforced against homeless individuals who take even the
most rudimentary precautions to protect themselves from the
elements.      We conclude that a municipality cannot
criminalize such behavior consistently with the Eighth
Amendment when no sleeping space is practically available
in any shelter.

                             III. Conclusion

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




    10
         Costs shall be awarded to the plaintiffs.
70                MARTIN V. CITY OF BOISE

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

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

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

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

        [A] state prisoner’s § 1983 action is barred
        (absent prior invalidation)—no matter the
        relief sought (damages or equitable relief), no
        matter the target of the prisoner’s suit (state
        conduct leading to conviction or internal
        prison proceedings)—if success in that action
                  MARTIN V. CITY OF BOISE                    71

       would necessarily demonstrate the invalidity
       of confinement or its duration.

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

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

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

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

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