                 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.
                                             OPINION
CITY OF BOISE,
                 Defendant-Appellee.


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

          Argued and Submitted July 13, 2017
                  Portland, Oregon

                 Filed September 4, 2018

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

               Opinion by Judge Berzon;
Partial Concurrence and Partial Dissent by Judge Owens
2                   MARTIN V. CITY OF BOISE

                            SUMMARY*


                             Civil Rights

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

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

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


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

failing to take part in a shelter’s mandatory religious
programs.

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

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

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

                        COUNSEL

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

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


                         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,
                 MARTIN V. CITY OF BOISE                     5

between 2007 and 2009, he or she was cited by Boise police
for violating one or both of two city ordinances. The first,
Boise City Code § 9-10-02 (the “Camping Ordinance”),
makes it a misdemeanor to use “any of the streets, sidewalks,
parks, or public places as a camping place at any time.” The
Camping Ordinance defines “camping” as “the use of public
property as a temporary or permanent place of dwelling,
lodging, or residence.” Id. The second, Boise City Code § 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
6                    MARTIN V. CITY OF BOISE

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

                            I. Background

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

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

    1
        The United States Department of Housing and Urban Development
(“HUD”) requires local homeless assistance and prevention networks to
conduct an annual count of homeless individuals on one night each
January, known as the PIT Count, as a condition of receiving federal
funds. State, local, and federal governmental entities, as well as private
service providers, rely on the PIT Count as a “critical source of data” on
homelessness in the United States. The parties acknowledge that the PIT
Count is not always precise. The City’s Director of Community
Partnerships, Diana Lachiondo, testified that the PIT Count is “not always
the . . . best resource for numbers,” but also stated that “the point-in-time
count is our best snapshot” for counting the number of homeless
individuals in a particular region, and that she “cannot give . . . any other
number with any kind of confidence.”
                 MARTIN V. CITY OF BOISE                    7

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

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

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

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

   The other two shelters in Boise are both operated by the
Boise Rescue Mission (“BRM”), a Christian nonprofit
8                   MARTIN V. CITY OF BOISE

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

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

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

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


    2
     The record suggests that BRM provides some limited additional
non-emergency shelter programming which, like the Discipleship
Program, has overtly religious components.
    3
     The intake form states in relevant part that “We are a Gospel Rescue
Mission. Gospel means ‘Good News,’ and the Good News is that Jesus
saves us from sin past, present, and future. We would like to share the
Good News with you. Have you heard of Jesus? . . . Would you like to
know more about him?”
                    MARTIN V. CITY OF BOISE                          9

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

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

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

A. The Plaintiffs

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

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

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

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

    Plaintiff Robert Martin is a former resident of Boise who
currently lives in Post Falls, Idaho. Martin returns frequently
to Boise to visit his minor son. In March of 2009, Martin was
cited under the Camping Ordinance for sleeping outside; he
was cited again in 2012 under the same ordinance.
                  MARTIN V. CITY OF BOISE                      11

B. Procedural History

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

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

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

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

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

    Bell further held that the plaintiffs’ claims for prospective
relief were not moot. The City had not met its “heavy
burden” of demonstrating that the challenged conduct —
enforcement of the two ordinances against homeless
individuals with no access to shelter — “could not reasonably
be expected to recur.” Id. at 898, 901 (quoting Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)). We emphasized that the Special Order was
a statement of administrative policy and so could be amended
or reversed at any time by the Boise Chief of Police. Id. at
899–900.
                  MARTIN V. CITY OF BOISE                     13

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

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

    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                             15

                            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.
16                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                    17

    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.
18                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                     19

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
20                 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                    21

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.
22               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                     23

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
24                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. With respect to these two incidents,
the district court erred in finding that the plaintiffs’ Eighth
                 MARTIN V. CITY OF BOISE                    25

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

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

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

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

     3. Prospective Relief

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

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

   Wolff held that although Preiser barred a § 1983 action
seeking restoration of good-time credits absent a successful
challenge in federal habeas proceedings, Preiser did not
                  MARTIN V. CITY OF BOISE                     27

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

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

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

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

C. The Eighth Amendment

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

    The Eighth Amendment states: “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const., amend. VIII.
The Cruel and Unusual Punishments Clause “circumscribes
the criminal process in three ways.” Ingraham, 430 U.S. at
667. First, it limits the type of punishment the government
may impose; second, it proscribes punishment “grossly
disproportionate” to the severity of the crime; and third, it
places substantive limits on what the government may
criminalize. Id. It is the third limitation that is pertinent here.
                  MARTIN V. CITY OF BOISE                    29

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

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

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

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

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

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

    Four Justices dissented from the Court’s holding in
Powell; Justice White concurred in the result alone. Notably,
Justice White noted that many chronic alcoholics are also
homeless, and that for those individuals, public drunkenness
may be unavoidable as a practical matter. “For all practical
purposes the public streets may be home for these
unfortunates, not because their disease compels them to be
there, but because, drunk or sober, they have no place else to
go and no place else to be when they are drinking. . . . For
some of these alcoholics I would think a showing could be
made that resisting drunkenness is impossible and that
avoiding public places when intoxicated is also impossible.
As applied to them this statute is in effect a law which bans
                  MARTIN V. CITY OF BOISE                       31

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

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

     This principle compels the conclusion that the Eighth
Amendment prohibits the imposition of criminal penalties for
sitting, sleeping, or lying outside on public property for
homeless individuals who cannot obtain shelter. As Jones
reasoned, “[w]hether sitting, lying, and sleeping are defined
as acts or conditions, they are universal and unavoidable
consequences of being human.” Jones, 444 F.3d at 1136.
Moreover, any “conduct at issue here is involuntary and
inseparable from status — they are one and the same, given
that human beings are biologically compelled to rest, whether
by sitting, lying, or sleeping.” Id. As a result, just as the state
may not criminalize the state of being “homeless in public
places,” the state may not “criminalize conduct that is an
unavoidable consequence of being homeless — namely
sitting, lying, or sleeping on the streets.” Id. at 1137.
32                    MARTIN V. CITY OF BOISE

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

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

     8
       Naturally, our holding does not cover individuals who do have
access to adequate temporary shelter, whether because they have the
means to pay for it or because it is realistically available to them for free,
but who choose not to use it. Nor do we suggest that a jurisdiction with
insufficient shelter can never criminalize the act of sleeping outside. Even
where shelter is unavailable, an ordinance prohibiting sitting, lying, or
sleeping outside at particular times or in particular locations might well be
constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might
an ordinance barring the obstruction of public rights of way or the erection
of certain structures. Whether some other ordinance is consistent with the
Eighth Amendment will depend, as here, on whether it punishes a person
for lacking the means to live out the “universal and unavoidable
consequences of being human” in the way the ordinance prescribes. Id.
at 1136.
                     MARTIN V. CITY OF BOISE                           33

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

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

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



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

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

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

Id. It appears from the record that the Camping Ordinance is
frequently enforced against homeless individuals with some
elementary bedding, whether or not any of the other listed
indicia of “camping” — the erection of temporary structures,
the activity of cooking or making fire, or the storage of
personal property — are present. For example, a Boise police
officer testified that he cited plaintiff Pamela Hawkes under
the Camping Ordinance for sleeping outside “wrapped in a
blanket with her sandals off and next to her,” for sleeping in
a public restroom “with blankets,” and for sleeping in a park
“on a blanket, wrapped in blankets on the ground.” The
Camping Ordinance therefore can be, and allegedly is,
enforced against homeless individuals who take even the
most rudimentary precautions to protect themselves from the
                       MARTIN V. CITY OF BOISE                  35

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.
36                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                    37

       would necessarily demonstrate the invalidity
       of confinement or its duration.

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

    A declaration that the city ordinances are unconstitutional
and an injunction against their future enforcement necessarily
demonstrate the invalidity of the plaintiffs’ prior convictions.
Indeed, any time an individual challenges the
constitutionality of a substantive criminal statute under which
he has been convicted, he asks for a judgment that would
necessarily demonstrate the invalidity of his conviction. And
though neither the Supreme Court nor this court has squarely
addressed Heck’s application to § 1983 claims challenging
the constitutionality of a substantive criminal statute, I
believe Edwards v. Balisok, 520 U.S. 641 (1997), makes clear
that Heck prohibits such challenges. In Edwards, the
Supreme Court explained that although our court had
recognized that Heck barred § 1983 claims challenging the
validity of a prisoner’s confinement “as a substantive matter,”
it improperly distinguished as not Heck-barred all claims
alleging only procedural violations. 520 U.S. at 645. In
holding that Heck also barred those procedural claims that
would necessarily imply the invalidity of a conviction, the
Court did not question our conclusion that claims challenging
a conviction “as a substantive matter” are barred by Heck.
38                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.
