BLACK, Circuit Judge:
Plaintiffs appeal the court's
Plaintiffs Robert Anderson, Janet Bell, Brian Carson, Pamela Hawkes, Basil Humphrey, Robert Martin, and Lawrence Lee Smith are individuals who either are or have been homeless in Boise. Plaintiffs have all been cited or arrested for violating one or both of the local ordinances at issue on appeal.
Between 2006 and 2009, Plaintiffs Anderson, Bell, Hawkes, Humphrey, Martin, and Smith were cited or arrested for violating Boise City Code § 9-10-02 (1993) (the Camping Ordinance). During that period, the Camping Ordinance provided:
Boise City Code § 9-10-02 (1993). Violation of the Camping Ordinance was (and is) a misdemeanor. Boise City Code § 9-10-20.
Between 2007 and 2009, Plaintiffs Carson, Hawkes, and Martin were cited for violating Boise City Code § 6-01-05(A) (the Sleeping Ordinance). The Sleeping Ordinance criminalizes as a misdemeanor "disorderly conduct," which includes "[o]ccupying, lodging or sleeping in any building, structure or place, whether public or private, or in any motor vehicle without the permission of the owner or person entitled to possession or in control thereof." Boise City Code § 6-01-05(A).
On June 28, 2010, Plaintiffs filed an amended complaint challenging the Camping and Sleeping Ordinances (collectively, the Ordinances) and seeking relief pursuant to 42 U.S.C. § 1983. Plaintiffs' amended complaint alleged that Defendants used the Ordinances "to cite and arrest individuals who cannot avoid violating these laws because they are homeless." Plaintiffs contended that Defendants' policy, custom, and practice in enforcing these ordinances "has the effect of `criminalizing' homelessness" and constitutes "cruel and unusual punishment in violation of Plaintiffs' well established rights under the Eighth Amendment." Plaintiffs sought declaratory and injunctive relief to enjoin enforcement of the Ordinances. Plaintiffs also sought an order (1) "compelling the
Central to Plaintiffs' claims is the alleged unavailability of overnight space in Boise's homeless shelters. Three primary homeless shelters operate in Boise. Boise Rescue Mission (BRM) operates two of the shelters — City Light for Women and Children (City Light) and River of Life. During the summer, both BRM shelters restrict the length of time a person may stay without participating in certain programs. City Light provides shelter for women and children, while River of Life provides shelter for men. Interfaith Sanctuary (Sanctuary) operates the third shelter. Sanctuary cannot guarantee shelter for every person who requests it, and frequently turns away people when full. However, Sanctuary employs a reservation system for those who have stayed the prior evening. People who stayed the previous night are guaranteed the same beds, provided they "show up by 9:00 pm or make special arrangements." Otherwise, the beds are given to those on the wait list. Sanctuary does not appear to restrict a person's length of stay, given that Plaintiff Anderson spent three years living at Sanctuary.
On November 10, 2009, after this litigation had commenced,
Boise City Code § 9-10-02 (2009).
No changes were made to the Sleeping Ordinance. However, the Boise Police Department's Chief of Police issued a "Special Order," with instructions to post the order in the 2009 Policy Manual accompanied by a handwritten note that the policy regarding enforcement of the Ordinances "is modified by Special Order 10-03, effective at 0001 hours on January 1, 2010." The Special Order is not referenced or incorporated into the Ordinances. Although the record is vague as to exactly how the Special Order was created, it is clear from the record that the Chief of Police has the exclusive authority to establish policy for the Boise Police Department.
The Special Order prohibits officers from enforcing the Camping and Sleeping Ordinances when a person is on public property and there is no available overnight shelter. The Special Order defines "available overnight shelter" as "a public or private shelter, with an available overnight space, open to an individual or family unit experiencing homelessness at no charge. To qualify as available, the space must take into account sex, marital and
All three homeless shelters agreed to report voluntarily to Boise State University Dispatch on evenings they determined their shelters were "full."
After extensive discovery, the amendment of the Camping Ordinance, and the adoption of the Special Order, the court granted Defendants' motion for summary judgment. The court, citing Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007) (order), recognized that a legal basis existed for Plaintiffs' Eighth Amendment challenge to the Ordinances.
In analyzing Plaintiffs' Eighth Amendment claims for prospective relief, the court distinguished between daytime enforcement of the Sleeping Ordinance and nighttime enforcement of the Sleeping and Camping Ordinances. With respect to the daytime enforcement of the Sleeping Ordinance, it determined "the undisputed facts reflect that the homeless may sleep in the parks during the day (whether or not shelter space is available)." Accordingly, the court concluded the daytime aspect of Plaintiffs' Eighth Amendment claims failed as a matter of law.
With respect to nighttime enforcement of both Ordinances, the court held that Plaintiffs' Eighth Amendment claims for prospective relief were mooted by the adoption of the Special Order. The court reasoned that the adoption of the Special Order allowed the homeless to sleep in parks at night if shelter space was unavailable, which made it "no longer reasonable to expect that the Boise Police Department will enforce the ... Ordinances against homeless people at night when shelter space is unavailable." Accordingly, the court found that adoption of the Special Order mooted the nighttime enforcement aspect of Plaintiffs' Eighth Amendment claims for prospective relief. The court noted that its "decision does not bar Plaintiffs from bringing a future action contending that Defendants are not following the policy set forth in the Special Order."
The court also concluded that the Rooker-Feldman doctrine barred consideration of Plaintiffs' claims for retrospective relief, including Plaintiffs' request for an order compelling expungement of Plaintiffs' criminal records and Plaintiffs' request for damages. The court reasoned that because Plaintiffs' requested relief was "designed to compensate Plaintiffs for the
The court granted summary judgment to Defendants on the remainder of Plaintiffs' claims and dismissed the amended complaint. This timely appeal followed. Plaintiffs do not appeal the court's decision that their Eighth Amendment claims concerning daytime enforcement of the Sleeping Ordinance failed as a matter of law. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1137 n. 13 (9th Cir.2012) (noting that an appellant waives appeal of an issue not raised in an opening brief).
We review an application of the Rooker-Feldman doctrine de novo. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir.2010). We also review de novo questions of Article III justiciability, including mootness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). Factual determinations underlying the district court's decision are reviewed for clear error. Wolfson v. Brammer, 616 F.3d 1045, 1053 (9th Cir.2010).
We first discuss the court's dismissal of Plaintiffs' Eighth Amendment claims for retrospective relief under the Rooker-Feldman doctrine. We determine the Rooker-Feldman doctrine is inapplicable because Plaintiffs' suit is not a forbidden de facto appeal. We then discuss the court's dismissal of Plaintiffs' Eighth Amendment claims for prospective relief on mootness grounds. We conclude Defendants have failed to meet their heavy burden of demonstrating that the Special Order eliminates all reasonable expectations of recurrence of the allegedly unconstitutional enforcement of the Ordinances. Because we hold that jurisdiction exists over Plaintiffs' Eighth Amendment claims for retrospective and prospective relief, we remand for a consideration of the merits of these claims.
The court dismissed Plaintiffs' claims for retrospective relief under the Rooker-Feldman doctrine after finding those "requests for relief are designed to compensate Plaintiffs for the injuries occasioned by the state-court judgments." On appeal, Plaintiffs contend the court incorrectly applied
The Rooker-Feldman doctrine forbids a losing party in state court from filing suit in federal district court complaining of an injury caused by a state court judgment, and seeking federal court review and rejection of that judgment. Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1297, 179 L.Ed.2d 233 (2011). To determine whether the Rooker-Feldman bar is applicable, a district court first must determine whether the action contains a forbidden de facto appeal of a state court decision. Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir.2003).
If "a federal plaintiff seeks to bring a forbidden de facto appeal, ... that federal plaintiff may not seek to litigate an issue that is `inextricably intertwined' with the state court judicial decision from which the forbidden de facto appeal is brought." Noel, 341 F.3d at 1158. The "inextricably intertwined" language from Feldman is not a test to determine whether a claim is a de facto appeal, but is rather a second and distinct step in the Rooker-Feldman analysis. See id. Should the action not contain a forbidden de facto appeal, the Rooker-Feldman inquiry ends. See Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1030 (9th Cir.2005).
The court erred by dismissing Plaintiffs' claims for retrospective relief under the Rooker-Feldman doctrine. Although Plaintiffs sought relief designed to remedy injuries suffered from a state court judgment, they did not allege before the court that the state court committed legal error, nor did they seek relief from the state court judgment itself. Rather, Plaintiffs assert "as a legal wrong an allegedly illegal act ... by an adverse party" — the City's allegedly unconstitutional enforcement of the Ordinances. Noel, 341 F.3d at 1164. Without a direct challenge to a state court's factual or legal conclusion, Plaintiffs' suit is not a forbidden de facto appeal, and Rooker-Feldman is inapplicable. See Manufactured Home Cmtys., 420 F.3d at 1030 ("MHC's complaint does not directly challenge a state court's factual or legal conclusion. MHC's complaint to the district court is, therefore, not a forbidden appeal under Rooker-Feldman."); see also Maldonado, 370 F.3d at 950; Kougasian, 359 F.3d at 1140. We therefore reverse the dismissal of Plaintiffs' claims for retrospective relief.
The court dismissed Plaintiffs' claims for prospective relief as moot after concluding the Special Order was "sufficient to foreclose any reasonable expectation that the alleged illegal action will recur." Specifically, the court found it was no longer reasonable to expect the Ordinances would be enforced against the homeless at night when shelter space was unavailable. On appeal, Plaintiffs argue the court failed to apply the stringent standard for evaluating whether a defendant's voluntary cessation of a challenged practice renders a case moot. Defendants contend Plaintiffs' claims have been mooted by the Special Order.
"The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed." Knox v. Serv. Emps. Int'l Union, Local 1000, ___ U.S. ___, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 708, 145 L.Ed.2d 610 (2000) ("It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." (internal quotation marks omitted)). The standard for determining whether a defendant's voluntary conduct moots a case is "stringent: A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 528 U.S. at 189, 120 S.Ct. at 708 (internal quotation marks omitted); see also White v. Lee, 227 F.3d 1214, 1242-44 (9th Cir. 2000). The "heavy burden" lies with the party asserting mootness to demonstrate that, after a voluntary cessation, "the challenged conduct cannot reasonably be expected to start up again." Friends of the Earth, 528 U.S. at 189, 120 S.Ct. at 708 (internal quotation marks omitted). This heavy burden applies to a government entity that voluntarily ceases allegedly illegal
The court's mootness analysis relied upon our decision in Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir.1994). Noatak, however, involved Alaska's repeal of a challenged statute and was "not a case where a defendant voluntarily ceases challenged action in response to a lawsuit." Id. at 1508, 1511. Noatak recognized the general principle that, "if a challenged law is repealed or expires, the case becomes moot." Id. at 1510.
Noatak's general principle narrowing the voluntary cessation exception is limited to "state legislative enactments that otherwise moot a controversy." See Chem. Producers & Distribs. Ass'n v. Helliker, 463 F.3d 871, 878 (9th Cir.2006) (noting the voluntary cessation exception has been narrowed in these circumstances). For state legislative enactments, "`[a] statutory change ... is usually enough to render a case moot, even if the legislature possesses the power to reenact the statute after the lawsuit is dismissed.'" Id. (quoting Noatak, 38 F.3d at 1510). By contrast, however, repeal or amendment of an ordinance by a local government or agency does not necessarily "deprive a federal court of its power to determine the legality of the practice." Id. (internal quotation marks omitted).
We are not presented with a change to a state legislative enactment, nor are we presented with the repeal of the challenged Ordinances. Defendants rely on the adoption of the Special Order, which is not analogous to either a state or local legislative enactment. Generally speaking, a statute is "[a] law passed by a legislative body." Black's Law Dictionary 1542 (9th ed.2009). Idaho's statutes are codified in the Idaho Code, and the legislative power to enact the laws of the State is vested in a senate and house of representatives. Idaho Const. art. III § 1. The Idaho Constitution provides that "no bill shall become a law without the concurrence of a majority of the members present," id. § 15, and the people of Idaho reserve "the power to approve or reject at the polls any act or measure passed by the legislature," id. § 1.
Similarly, the City of Boise defines ordinances as "formal legislative acts of the Council [to be] used whenever the Council intends to pass a regulatory measure, especially when it provides a penalty for a violation." City of Boise, http://cityclerk. cityofboise.org/city-code/ (last visited Dec. 18, 2012). The procedures for adopting an ordinance are outlined in the Idaho Code and "must be strictly followed." Id. A majority vote of the city council is required to pass or adopt an ordinance, and the subject of the ordinance must be clearly expressed in the title. Idaho Code § 50-902. The Idaho Code also imposes certain publication requirements before an ordinance may take effect. Idaho Code §§ 50-901, 50-901A.
The Special Order is not governed by any analogous procedures. Although policies in the Boise Police Department Policy Manual may be created by a "policy committee," the Chief of Police has the ultimate, and exclusive, authority to "establish policy and to direct all actions of the Department and its employees." See Masterson Dep. 27: 1-4, 28: 6-8, Aug. 12, 2010. The Special Order was issued by the Boise Police Department's Chief of Police with instructions to post the order in the 2009
The Special Order is an internal policy that purports to curb the discretion of officers to enforce the Ordinances when "[t]here is no available overnight shelter." It is not a formal written enactment of a legislative body and thus was not subject to any procedures that would typically accompany the enactment of a law. Nor is the Special Order referenced or incorporated in the Ordinances.
The Special Order is also distinguishable from the "entrenched" and "permanent" policy issued in White. 227 F.3d at 1243. In White, the Department of Housing and Urban Development (HUD) adopted a new policy in response to the plaintiffs' allegations that HUD investigators violated their First Amendment rights. Id. at 1225. The new policy was designed to protect the First Amendment rights of parties subject to HUD investigations, and the policy was circulated in a memorandum, announced by press release, and incorporated into a field handbook. Id. at 1242. We found the policy change to be "permanent" based on the broad scope and unequivocal tone of the new policy. Id. at 1243. We also noted the new policy, which had been renewed on an annual basis and in place for more than five years, was "fully supportive of First Amendment rights," "addresse[d] all of the objectionable measures that HUD officials took against the plaintiffs," and "even confesse[d] that [plaintiffs'] case was the catalyst for the agency's adoption of the new policy." Id. & n. 25. Based on these facts, we held HUD had met its heavy burden of proving the challenged conduct could not reasonably be expected to recur, such that the plaintiffs' claims were mooted by the new policy. Id. at 1244.
Although White establishes that a policy change may be sufficient to meet the stringent standard for proving a case has been mooted by a defendant's voluntary conduct, id. at 1243-44, the Special Order lacks the assurances present in White. Significantly, in White, the new policy addressed "all of the objectionable measures that HUD officials took against the plaintiffs." Id. at 1243 (emphasis added). In contrast, the Special Order fails to fully address Plaintiffs' allegations in their amended complaint with regard to Defendants' nighttime enforcement of the Ordinances.
On the record before us, we conclude the implementation of the Special Order is insufficient to moot Plaintiffs' Eighth Amendment claims for prospective relief.
We reverse the court's dismissal of Plaintiffs' claims for retrospective relief because those claims are not barred by the Rooker-Feldman doctrine. Further, we conclude jurisdiction exists as to Plaintiffs' claims for prospective relief regarding the nighttime enforcement of the Ordinances. We remand the case for further proceedings consistent with this opinion.
The parties also fail to address the application of Heck v. Humphrey's "favorable-termination" requirement. See 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994) ("We hold that, in order to 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, 28 U.S.C. § 2254." (footnote omitted)). The court may address this issue on remand to determine whether Plaintiffs have raised a "cognizable" § 1983 claim. Heck, 512 U.S. at 483, 114 S.Ct. at 2370.
