FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JESUS PIMENTEL; DAVID R. WELCH;         No. 18-56553
JEFFREY O'CONNELL; EDWARD LEE;
WENDY COOPER; JACKLYN BAIRD;               D.C. No.
ANTHONY RODRIGUEZ; RAFAEL               2:14-cv-01371-
BUELNA, and all persons similarly           FMO-E
situated,
               Plaintiffs-Appellants,
                                        ORDER AND
                 v.                      AMENDED
                                          OPINION
CITY OF LOS ANGELES,
              Defendant-Appellee.

      Appeal from the United States District Court
          for the Central District of California
     Fernando M. Olguin, District Judge, Presiding

         Argued and Submitted January 7, 2020
                 Pasadena, California

                 Filed July 22, 2020
             Amended September 11, 2020

     Before: Paul J. Watford, Mark J. Bennett, and
            Kenneth K. Lee, Circuit Judges.
2             PIMENTEL V. CITY OF LOS ANGELES

                           Order;
                    Opinion by Judge Lee;
                 Concurrence by Judge Bennett


                          SUMMARY *


                           Civil Rights

    The panel affirmed in part and reversed in part the
district court’s summary judgment in an action brought
pursuant to 42 U.S.C. § 1983 challenging a Los Angeles
parking ordinance as violating the Eighth Amendment’s
Excessive Fines Clause.

    Under the ordinance, if a person parks her car past the
allotted time limit and forces people to drive around in
search of other parking spaces, she must pay a $63 fine. And
if she fails to pay the fine within 21 days, the City will
impose a late-payment penalty of $63.

    The panel held that the Excessive Fines Clause applies
to municipal parking fines. The panel noted that the
Supreme Court’s recent decision in Timbs v. Indiana, 

, 687 (2019), incorporated the Excessive Fines
Clause of the Eighth Amendment to the states through the
Fourteenth Amendment. The panel held that the Timbs
decision affirmatively opened the door for Eighth
Amendment challenges to fines imposed by state and local
authorities. The panel therefore extended the four-factor

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

analysis set forth in United States Bajakajian, 

(1998) to govern municipal fines.

    The panel held that the initial fine of $63 did not violate
the Excessive Fines Clause because it was not grossly
disproportionate to the offense of overstaying the time at a
parking space. The panel reversed, however, the district
court’s summary judgment in favor of the City as to the late
payment penalty of $63. The panel held that based on the
record, it did not know the City’s justification for setting the
late fee at one hundred percent of the initial fine. The panel
therefore remanded for the district court to determine under
Bajakaijian whether the City’s late fee ran afoul of the
Excessive Fines Clause.

   Concurring in the judgment, Judge Bennett stated that
because the City of Los Angeles conceded that the Excessive
Fines Clause applied to parking fines, he concurred in the
judgment. Judge Bennett wrote separately because he did
not believe the Excessive Fines Clause should routinely
apply to parking meter violations.


                         COUNSEL

Donald G. Norris (argued), Donald G. Norris ALC, Los
Angeles, California; Donald R. Pepperman, Baker Marquart
LLP, Los Angeles, California; for Plaintiffs-Appellants.

Gerald M. Sato (argued) and Arlene N. Hoang, Deputy City
Attorney; Gabriel S. Dermer, Assistant City Attorney; James
P. Clark, Chief Assistant City Attorney; Michael N. Feuer,
4           PIMENTEL V. CITY OF LOS ANGELES

City Attorney; Office of the City Attorney, Los Angeles,
California; for Defendant-Appellee.


                         ORDER

    The Opinion filed on July 22, 2020, is amended as
follows:

   On slip opinion page 14, lines 9–11, delete: “And in any
event, appellants appear to have brought a facial challenge,
so means-testing makes little sense here.”

    The Clerk shall file the amended opinion submitted with
this Order. Plaintiffs-Appellants’ petition for rehearing is
denied as moot. Further petitions for rehearing and petitions
for rehearing en banc will not be entertained.



                        OPINION

LEE, Circuit Judge:

    In the opening scene of La La Land, drivers stuck in
traffic spontaneously sing and dance on top of their cars and
in the streets. Hollywood, however, rarely resembles reality.
On any given day, Los Angelenos sigh and despair when
mired in traffic jams. One small way the City of Los Angeles
tries to alleviate traffic congestion is to impose time
restrictions — and fines — for limited public parking spaces.
If a person parks her car past the allotted time limit and
forces people to drive around in search of other parking
spaces, she must pay a $63 fine. And if she fails to pay the
fine within 21 days, the City will impose a late-payment
penalty of $63.
             PIMENTEL V. CITY OF LOS ANGELES                  5

    Appellants, who had parking fines and late fees levied
against them, challenge the Los Angeles parking ordinance
as violating the Eighth Amendment’s Excessive Fines
Clause. We hold that the Excessive Fines Clause applies to
municipal parking fines. We affirm the district court's
summary judgment order that the initial parking fine is not
grossly disproportionate to the offense and thus survives
constitutional scrutiny. But we reverse and remand for the
district court to determine whether the City’s late fee runs
afoul of the Excessive Fines Clause.

                      BACKGROUND

    The City of Los Angeles imposes civil fines for parking
meter violations. The fine for overstaying the allotted time
is $63. If the driver fails to pay that fine within 21 days, the
City levies a late fee of another $63. After 58 days of
nonpayment, the City issues a second late-payment penalty
of $25; then after 80 days, the driver is subjected to a $3
Department of Motor Vehicles registration hold fee, as well
as a $27 collection fee. In sum, a person who overstays a
metered parking spot faces a fine of anywhere from $63 to
$181, depending on her promptness of payment.
Approximately $12.50 to $17.50 of the initial $63 is reserved
for the County and State. The remainder is disbursed to the
City’s coffers.

    Jesus Pimentel and the other appellants sued the City of
Los Angeles under 42 U.S.C. § 1983, asserting that the fines
and late payment penalties violate the Eighth Amendment’s
Excessive Fines Clause and the California constitutional
counterpart, Article 1, Section 17. The district court granted
summary judgment to the City, ruling that the fines and late
fees were not “grossly disproportional” to the underlying
offense of overstaying the parking time limit and therefore
6           PIMENTEL V. CITY OF LOS ANGELES

did not violate the Excessive Fines Clause.        Appellants
timely appealed.

    JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s grant of summary
judgment. Devereaux v. Abbey, 

, 1074 (9th
Cir. 2001) (en banc). “Viewing the evidence in the light
most favorable to the nonmoving party, we must determine
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.”

Eighth Amendment’s Excessive Fines Clause
   applies to municipal parking fines.

   The Eighth Amendment of the United States
Constitution provides: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual
punishments inflicted.”       U.S. Const. amend. VIII.
Importantly here, the second clause — the Excessive Fines
Clause — “limits the government’s power to extract
payments, whether in cash or in kind, as punishment for
some offense.” Austin v. United States, 

, 609–
610 (1993) (internal quotation marks and citation omitted).

    The Excessive Fines Clause traces its lineage back to at
least the Magna Carta which “guaranteed that ‘[a] Free-man
shall not be [fined] for a small fault, but after the manner of
the fault; and for a great fault after the greatness thereof,
saving to him his contenement . . . .” Timbs v. Indiana,

, 687 (2019) (citation omitted). For centuries,
authorities abused their power to impose fines against their
            PIMENTEL V. CITY OF LOS ANGELES                 7

enemies or to illegitimately raise revenue. See

(Thomas, J., concurring) (noting, for example, that the Star
Chamber “imposed heavy fines on the king’s enemies”).
That fear of abuse of power continued to the colonial times.
During the founding era, fines were “probably the most
common form of punishment,” and this made “a
constitutional prohibition on excessive fines all the more
important.”

(internal citations and quotation
marks omitted). Like the other enumerated rights in the Bill
of Rights, the Eighth Amendment was established to shield
the people from governmental overreach. See

(noting that the Eighth Amendment is “an admonition”
against “arbitrary reigns” by the government). Indeed, as the
Supreme Court recently stated, the “right against excessive
fines . . . has been consistently recognized as a core right
worthy of constitutional protection.”

    The Supreme Court has held that a fine is
unconstitutionally excessive under the Eighth Amendment if
its amount “is grossly disproportional to the gravity of the
defendant’s offense.” United States v. Bajakajian, 

, 336–37 (1998). To determine whether a fine is grossly
disproportional to the underlying offense, four factors are
considered: (1) the nature and extent of the underlying
offense; (2) whether the underlying offense related to other
illegal activities; (3) whether other penalties may be imposed
for the offense; and (4) the extent of the harm caused by the
offense. See United States v. $100,348 in U.S. Currency,

, 1122 (9th Cir. 2004) (enunciating the
“Bajakajian factors”). While these factors have been
adopted and refined by subsequent case law in this circuit,
Bajakajian itself “does not mandate the consideration of any
rigid set of factors.” United States v. Mackby, 

, 1016 (9th Cir. 2003).
8           PIMENTEL V. CITY OF LOS ANGELES

    Excessive Fines Clause claims generally arise in the
criminal forfeiture context. The Court in Bajakajian, for
example, addressed the criminal forfeiture of a large sum of
money for failing to report it during international travel in
violation of federal 

. Many other courts
in this circuit and elsewhere have mainly cited Bajakajian in
similar criminal contexts. See, e.g., $100,348 in U.S.

–14 (criminal money forfeiture
for knowingly making false statements in connection with
failure to report international transport of cash); United
States v. George, 

, 122 (2d Cir. 2015) (criminal
forfeiture of a residence for its use in harboring an illegal
alien); United States v. Chaplin’s, Inc., 

, 849–
50 (11th Cir. 2011) (criminal forfeiture of jewelry store’s
inventory for its use in a money laundering operation);
United States v. Cheeseman, 

, 273 (3d Cir.
2010) (criminal forfeiture of firearms and ammunition as a
consequence of defendant’s drug addiction); United States v.
Wallace, 

, 484 (5th Cir. 2004) (criminal
forfeiture of an aircraft for defendant’s knowing and willing
operation of an unregistered aircraft).

    While the Supreme Court has not yet addressed whether
the Excessive Fines Clause applies only in the criminal
forfeiture realm, this court has applied Bajakajian to civil
penalties imposed by federal law. In Vasudeva v. United
States, for example, we reviewed the constitutionality of
civil monetary penalties for trafficking in federal food
stamps. 

, 1161–62 (9th Cir. 2000). Similarly,
in Balice v. U.S. Department of Agriculture, we applied the
Bajakajian factors to assess the constitutionality of civil
fines levied pursuant to the Agricultural Marketing
Agreement Act. 

, 698–99 (9th Cir. 2000).
            PIMENTEL V. CITY OF LOS ANGELES                9

    Today, we extend Bajakajian’s four-factor analysis to
govern municipal fines. We do so because the final link in
the chain connecting the Eighth Amendment to municipal
fines is forged by the Supreme Court’s recent Timbs
decision. 

. The Supreme Court in Timbs
incorporated the Excessive Fines Clause of the Eighth
Amendment to the states through the Fourteenth
Amendment.

We hold that the Timbs decision
affirmatively opens the door for Eighth Amendment
challenges to fines imposed by state and local authorities.

II. The initial fine of $63 does not violate the Excessive
    Fines Clause.

     Appellants challenge the constitutionality of the City’s
initial parking fine of $63. Applying the Bajakajian factors,
we conclude that the initial parking fine is not grossly
disproportionate under the Eighth Amendment and affirm
the district court’s grant of summary judgment in favor of
the City for the initial fine.

    Looking to the first Bajakajian factor, we must
determine the nature and extent of the underlying offense.
See $100,348 in U.S. 

. Courts
typically look to the violator’s culpability to assess this
factor. In Bajakajian, for example, the Supreme Court
assessed defendant Bajakajian’s culpability based on his
attempt to export over $350,000 in cash from the United
States by concealing it during an international 

–25. Bajakajian pleaded guilty to violating
31 U.S.C. § 5316, which requires anyone who transports
more than $10,000 out of the country to report the transfer.

The federal government then sought forfeiture of
the cash.

The Supreme Court found that
Bajakajian’s culpability was minimal because the crime was
“solely a reporting offense.”

         PIMENTEL V. CITY OF LOS ANGELES

    In United States v. $100,348 in U.S. Currency, this court
found that culpability increased if defendant’s violation
involved reckless 

. There,
defendant had similarly failed to report the international
export of a large sum of money, but he ignored several
potential red flags. According to the defendant, a family
friend had given him the money and instructed him to return
with it to Israel.

He did not ask about the
source of the money but told his friend that he would not be
responsible if anything happened to it.

The
defendant further testified that he asked essentially no
questions about the money — nothing about its source, its
purpose for being sent to Israel, or why the family friend
hadn’t entrusted him with traveler’s checks instead.

We found that his reckless behavior showed “more
than a minimal level of culpability.”

is high or behavior reckless, the nature
and extent of the underlying violation is more significant.
Conversely, if culpability is low, the nature and extent of the
violation is minimal. It is critical, though, that the court
review the specific actions of the violator rather than by
taking an abstract view of the violation. See United States v.
3814 NW Thurman St., 

, 1197 (9th Cir. 1999),
opinion amended on denial of reh’g sub nom., 

(9th Cir. 1999), superseded by statute on other grounds,
18 U.S.C. § 983(d) (2000).

    We note that benign actions may still result in some non-
minimal degree of culpability. The Seventh Circuit’s
decision in Towers v. City of Chicago is instructive. There,
the Seventh Circuit reviewed a municipal ordinance that
fined car owners who allowed their vehicle to be used to
transport illegal guns or drugs by others, even if they were
unaware that their vehicle was used for that purpose.
            PIMENTEL V. CITY OF LOS ANGELES                11

, 625–26 (7th Cir. 1999).              The court
emphasized the owners’ failure to report their cars as stolen
(which implies consent to use), and further noted that an
owner necessarily accepts the risks when she lets another
person borrow her vehicle.

rejected
“the notion that the plaintiffs must be considered completely
lacking in culpability,” even though the act triggering the
fine was merely letting another person borrow their vehicle
and nothing more.

    We find the Seventh Circuit’s reasoning persuasive.
Even if the underlying violation is minor, violators may still
be culpable. Here, plaintiffs are indeed culpable because
there is no factual dispute that they violated Los Angeles
Municipal Code § 88.13 for failing to pay for over-time use
of a metered space. But we also conclude that appellants’
culpability is low because the underlying parking violation
is minor. We thus find that the nature and extent of
appellants’ violations to be minimal but not de minimis.

    Moving to the second Bajakajian factor, we must
determine whether the underlying offense relates to other
illegal activities. See $100,348 in U.S. 

. This factor is not as helpful to our inquiry as it
might be in criminal contexts. We only note that there is no
information in the record showing whether overstaying a
parking meter relates to other illegal activities, nor do the
parties argue as much.

    Similarly, the third Bajakajian factor — whether other
penalties may be imposed for the violation — does not
advance our analysis. See

that
alternative penalties may be imposed instead of the fine, and
the record is devoid of any such suggestion.
12          PIMENTEL V. CITY OF LOS ANGELES

    Turning to the fourth factor, we must determine the
extent of the harm caused by the violation. See

and simple way to assess this factor is to observe the
monetary harm resulting from the violation. In 3814 NW
Thurman St., this court held that because “neither creditors
nor the government suffered any actual loss” from the
violation, defendant’s “violations were at the low end of the
severity 

. In Mackby, on the
other hand, we reviewed a civil fine imposed under the False
Claims Act and were persuaded that because the government
was monetarily harmed by defendant’s fraudulent conduct,
the extent of the harm was 

–19.

    But our review of the fourth Bajakajian factor is not
limited to monetary harms alone. Courts may also consider
how the violation erodes the government’s purposes for
proscribing the conduct. In Vasudeva, this court rejected the
violators’ claim that no harm resulted because the trafficked
food stamps were never 

. We
found that a narrow focus on monetary harms failed to
capture the full scope of the injury. Instead, we held that
trafficking in food stamps is harmful, regardless of
redemption status, because the very act of trafficking
undermines the viability of the program.

this court held that non-monetary injury may be
considered in assessing the harm caused by the violation.
There, defendant provided legitimate physical therapy
services to Medicare patients but was ineligible to receive
payment from the Medicare Part B 

–15. The defendant fraudulently used the credentials
of his father, a physician, to make claims against the
program.

The court held that fraudulent claims
for otherwise legitimate services “make the administration
of Medicare more difficult, and widespread fraud would
undermine public confidence in the system.”

see
            PIMENTEL V. CITY OF LOS ANGELES                 13

also 

(noting that the violation
“undermined the Secretary’s efforts to protect the stability of
the almond market”); 

(finding the
violation harmed the City’s interests in public safety even
though the harm is “not readily quantifiable”).

    Here, there is no real dispute that the City is harmed
because overstaying parking meters leads to increased
congestion and impedes traffic flow. Without material
evidence provided by appellants to the contrary, we must
afford “substantial deference to the broad authority that
legislatures necessarily possess in determining the types and
limits of punishments.” 

(quoting Solem v. Helm, 

, 290 (1983)).

    Pimentel further argues that the City has proffered no
quantitative evidence showing that the initial fine deters
parking violations or promotes compliance. While the
Excessive Fines Clause curbs governmental overreach, the
Supreme Court in Bajakajian also stated that legislatures
nonetheless retain “broad authority” to fashion fines.

against “requiring strict proportionality
between the amount of a punitive forfeiture and the gravity
of a criminal offense.”

of the
forfeiture must bear some relationship to the gravity of the
offense that it is designed to punish.”

     In light of that guidance from the Supreme Court, we do
not believe that the Eighth Amendment obligated the City to
commission quantitative analysis to justify the $63 parking
fine amount. That amount bears “some relationship” to the
gravity of the offense. While a parking violation is not a
serious offense, the fine is not so large, either, and likely
deters violations.
14          PIMENTEL V. CITY OF LOS ANGELES

    The most analogous case is the Seventh Circuit’s
decision in Towers. 

. In that case, the fine was
$500 for the act of a car owner unwittingly allowing another
to borrow their vehicle to be used for criminal ends.

The Seventh Circuit acknowledged that $500 is not
a “trifling sum,” but ruled that the City was “entitled to take
into consideration that ordinances must perform a deterrent
function.”

held that a $500 fine is “large
enough to function as a deterrent,” but “is not so large as to
be grossly out of proportion to the activity that the City is
seeking to deter.”

$63 parking fine is
sufficiently large enough to deter parking violations but is
“not so large as to be grossly out of proportion” to
combatting traffic congestion in one of the most congested
cities in the country.

    Pimentel argues that an Excessive Fines Clause analysis
must incorporate means-testing to assess a violator’s ability
to pay. This is a novel claim in this circuit, and one the
Supreme Court expressly declined to address in Bajakajian.

n.15. The Court in Timbs likewise left
the question open. 

. We, too, decline
Pimentel’s invitation to affirmatively incorporate a means-
testing requirement for claims arising under the Eighth
Amendment’s Excessive Fines Clause.

    Considering the Bajakajian factors, we hold that the
City’s initial parking fine of $63 is not grossly
disproportional to the underlying offense of overstaying the
time at a parking space. We affirm the district court’s grant
of summary judgment in favor of the City of Los Angeles on
this issue.
            PIMENTEL V. CITY OF LOS ANGELES                 15

III.   The district court erred by granting summary
       judgment in favor of the City of Los Angeles as to
       the late payment penalty of $63.

    While we affirm the district court’s grant of summary
judgment on the initial parking fine, we cannot endorse the
court’s conclusion that the late fee does not constitute an
excessive fine — at least based on the record presented to us.
Notably, the district court did not apply the Bajakajian
factors to the late fee. Instead, it rejected the challenge to
the late fee in a footnote citing two cases that themselves
only provide conclusory assertions. See Pimentel v. City of
Los Angeles, No. CV-14-1371-FMO, 

, at
*6 n.12 (C.D. Cal. May 21, 2018) (citing Wemhoff v. City of
Baltimore, 

, 809 (D. Md. 2008); Popescu
v. City of San Diego, No. 06-CV-1577-LAB, 

, at *4 (S.D. Cal. Jan. 25, 2008)). We thus reverse
and remand on this issue.

    As the Supreme Court recently reminded us, the
Excessive Fine Clause is “fundamental to our scheme of
ordered liberty, with deep roots in our history and tradition.”

–87 (internal quotation marks and
alterations omitted). This right to be free from excessive
governmental fines is not a relic relegated to the period of
parchments and parliaments, but rather it remains a crucial
bulwark against government abuse. The government cannot
overstep its authority and impose fines on its citizens without
paying heed to the limits posed by the Eighth Amendment.
Yet in its brief to this court, the City of Los Angeles did not
even bother addressing the constitutionality of its late fee.
Based on the record, we do not know the City’s justification
for setting the late fee at one hundred percent of the initial
fine.
16           PIMENTEL V. CITY OF LOS ANGELES

    We remand for the court to determine under Bajakajian
whether the late payment penalty of $63 is grossly
disproportional to the offense of failing to pay the initial fine
within 21 days.

                       CONCLUSION

    We AFFIRM the grant of summary judgment in favor
of the City for the initial parking fine of $63, and REVERSE
and REMAND the grant of summary judgment in favor of
the City for the late payment penalty of $63.



BENNETT, Circuit Judge, concurring in the judgment:

    Because the City of Los Angeles conceded that the
Excessive Fines Clause applied to parking “fines,” I concur
in the judgment. I write separately because I do not believe
the Excessive Fines Clause should routinely apply to parking
meter violations.

    The Excessive Fines Clause “limits the government’s
power to extract payments, whether in cash or in kind, as
punishment for some offense.” Austin v. United States,

, 609–610 (1993) (internal quotation marks and
citation omitted). Thus, for example, the Excessive Fines
Clause seldom applies to punitive damages awards in civil
suits between private parties because “the primary focus of
the Eighth Amendment was the potential for governmental
abuse of its ‘prosecutorial’ power, not concern with the
extent or purposes of civil damages.” Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 

, 266–
67 (1989). The threshold question then is whether Los
Angeles is using its government (sovereign) power to
“extract payments” or whether it is acting in a proprietary
              PIMENTEL V. CITY OF LOS ANGELES                        17

capacity by merely “renting” out the parking spaces,
analogous to a privately owned parking garage. 1

    Because “the Excessive Fines Clause of the 1689 Bill of
Rights” is a “direct ancestor of our Eighth Amendment,”

, I begin with the English
common law understanding of sovereign power. English law
did not distinguish between our modern conception of the
government’s rights arising from owning property and the
exercise of sovereign power: “The king not only exercised
the lawmaking powers of a sovereign; as the head of the
feudal landholding system, he also maintained extensive
proprietary rights.” Michael C. Blumm & Lucas Ritchie, The
Pioneer Spirit and the Public Trust: The American Rule of
Capture and State Ownership of Wildlife, 35 Envtl. L. 673,
679 (2005). Within this framework, English courts had to
determine whether the King’s ownership derived from his
powers as a sovereign or as a property owner. For example,
English courts eventually determined that the King owned
the wildlife in England under his sovereign power, or
prerogative. See Bowlston v. Hardy (1596) 78 Eng. Rep. 794,
794 (K.B.) (noting that no one could own wild animals
except “by grant from the King, or by prescription . . . for the
Queen hath the royalty in such things whereof none can have
any property”). This “meant that the king was obligated to
manage wildlife for the benefit of all the people of his
kingdom rather than his own individual interest.” Michael C.
Blumm & Aurora Paulsen, The Public Trust in Wildlife¸

. Rev. 1437, 1454 (2013).

    This view of sovereignty and property carried over into
the laws of the United States, subject to modification by

     1
       On top of rent, Los Angeles also charges extra for “holdovers” and
late payments.
18            PIMENTEL V. CITY OF LOS ANGELES

subsequent state and federal laws and the Constitution.2
Shively v. Bowlby, 

, 14 (1894). After the
revolution, “all the rights of the crown and of parliament
vested in the several states, subject to the rights surrendered
to the national government by the constitution of the United
States.”

    The California Supreme Court explained 130 years ago
that municipal corporations, like Los Angeles, are “clothed
with certain functions of local government, and invested
with the management of public property within their
respective boundaries.” Bd. of Educ. v. Martin, 

,
801 (Cal. 1891). While these corporations may own private
property unrelated to their governmental functions, that
“does not deprive [such property] of this public
characteristic.”

municipality has set aside
property like streets and public squares for public use, such
property is public property. “The proprietary interest in all
such property belongs to the public . . . whether the legal title
to such property be in the municipality or any of its officers
or departments, it is at all times held by it or them for the
benefit of the whole public, and without any real proprietary

     2
       For example, New York City’s water commission—a municipal
body that could assert sovereign immunity—was nevertheless found to
be potentially liable for the construction of a dam for drinking water
because a private corporation could have built the dam. See Bailey v.
Mayor of New York, 

(N.Y. Sup. Ct. 1842). The court
distinguished between the municipal entity acting as a public or
government actor versus as a private entity.

see also City of
Logansport v. Pub. Serv. Comm’n, 

, 252 (Ind. 1931) (noting
that the city was acting “in its private business capacity and not in its
public governmental capacity” when it operated an electric utility and
sold power to the public); City of Tacoma v. City of Bonney Lake, 

, 1020 (Wash. 2012) (“A city’s decision to operate a utility is
a proprietary decision, as is its right to contract for any lawful
condition.”).
              PIMENTEL V. CITY OF LOS ANGELES                        19

interest therein.”

While this suggests that Los
Angeles—a California municipal corporation—is using its
sovereign power when it “leases” parking spaces, that does
not end the inquiry. 3

    Today, our “[g]overnment plays many parts. When it
acts in one of its many proprietary roles (employer,
purchaser, or landlord, to name a few), it must be able to
enforce reasonable and germane conditions.” Rucker v.
Davis, 

, 1138 (9th Cir. 2001) (Sneed, J.,
dissenting), rev’d sub nom. Dep’t of Hous. & Urban Dev. v.
Rucker, 535 U.S 125 (2002). Accordingly, in these
circumstances, when the government is not acting in a
sovereign capacity, the Supreme Court has found that
traditional Constitutional constraints do not apply or are
relaxed. See, e.g., Hughes v. Alexandria Scrap Corp.,

(1976) (recognizing that states acting as
market participants rather than market regulators are not
subject to the constraints of the Commerce Clause); Nat’l
Endowment for the Arts v. Finley, 

, 587–88
(1998) (government’s ability to allocate funding
competitively is more flexible than through direct
regulation).


    3
      And there are at least fifty sets of such principles governing
municipal corporations among the several states, and likely many more,
as some states understandably treat large cities differently than small
towns, and others’ rules depend on the exact nature of the municipality—
county, township, borough, city, town, or village. See, e.g., Chadwick v.
Scarth, 

(Mass. App. Ct. 1978) (discussing the difference
between a city or a town under Massachusetts law); Walters v. Cease,

, 264 n.1. (Alaska 1964) (noting that in Alaska “all local
government powers are vested in boroughs and cities”); see also
generally 1 McQuillin The Law of Municipal Corporations §§ 2:41–62
(3d ed. 2019).
20            PIMENTEL V. CITY OF LOS ANGELES

    Cities that meter on-street parking may thus be acting in
a similar capacity as the owner of a private parking garage—
both are leasing the spaces for a specific sum. And the
Supreme Court has not, of course, recognized a
constitutional guarantee to parking. Cf. Lindsey v. Normet,

, 74 (1972) (no constitutional right to housing).
Absent statutory restrictions, a private landlord may freely
choose what rate it charges for parking, holdover and late
fees included. I see no constitutional reason why cities like
Los Angeles cannot similarly freely set parking rates,
including holdover and late fees, unrestrained by the
Constitution, because “the definition of landlord-tenant
relationships [is] [a] legislative, not judicial, function[].”

Ensuring that the tenant timely vacates and pays is likely an
appropriate sovereign/trustee function. Or to put it another
way, Los Angeles should be able to generally structure its
parking rates, including by deterring holdovers and
encouraging prompt payment, restrained only by state law
and its own municipal code and regulations.

    The Supreme Court has called this government/property
distinction (in other areas of law) a “quagmire that has long
plagued the law of municipal corporations.” Indian Towing
Co. v. United States, 

, 65 (1955). When Indian
Towing was decided, tort law claims regularly turned on the
distinction between the municipal government acting in its
sovereign capacity or as a property owner, and states differed




     4
       Because, as Rousseau noted, “the world of imagination is
boundless,” I am sure some creative municipality could devise a parking
scheme that runs afoul of the Constitution. But that should not mean that
every municipal parking scheme is subject to attack under the Excessive
Fines Clause and the Civil Rights Acts.
              PIMENTEL V. CITY OF LOS ANGELES                        21

widely as to municipal liability. 5

n.1. I think it an
odd outcome for a municipality (located in a jurisdiction
retaining common law sovereign immunity) acting as a
private property owner to be nonetheless held liable for civil
rights violations because it is using its government power 6
to collect parking charges. 7

    Finally, we all know that many municipalities rent out
parking or otherwise charge for use of their property
(including assessing holdover and late fees). I simply do not
believe that every time a city or town does so, it should be
subject to a § 1983 action. Even looking only at parking
spaces, the potential for federal court litigation is endless. I
see Los Angeles’s charges, including its holdover and late
fees, as routine. The Congress, in enacting the Civil Rights

    5
      Today most states have abrogated the common law doctrine of
sovereign immunity and have replaced it with statutes granting immunity
for some government actions but not others. See Hugh D. Spitzer,
Realigning the Governmental/Proprietary Distinction in Municipal Law,
40 Seattle U. L. Rev. 173, 190 (2016). And the United States has done
exactly that in the Federal Tort Claims Act. See 28 U.S.C. §§ 1346(b),
2671–2680.

    6
      Of course, it is that government power itself that brings section
1983 into play. But the Plaintiffs’ complaint here primarily goes to the
amounts assessed, and not the means of collection, and my concern is
with routinely subjecting those amounts to federal court scrutiny.
     7
       Unsurprisingly, the National Park Service is putting meters on the
National Mall in Washington, D.C., to “create more frequent turnover of
limited parking spaces; [to] encourage the use of public transportation
options, . . . and [to] provide revenue to create and improve affordable
visitor transportation.” National Park Service, https://www.nps.gov/na
ma/planyourvisit/parking-meter-faq.htm (last visited July 13, 2020).
These are some of the same reasons Los Angeles has parking meters. I
hope the Park Service’s late charges are not “excessive,” or the District
of Columbia courts may soon have some increased activity.
22             PIMENTEL V. CITY OF LOS ANGELES

Acts following the adoption of the Fourteenth Amendment,
certainly did not intend for those noble statutes to redress the
types of “rights” asserted here. See Monell v. Dep’t of Soc.
Serv., 

, 684 (1978) (quoting approvingly the
characterization of the purpose of § 1983 as “in aid of the
preservation of human liberty and human rights”). And
neither, I think, did the authors of the Eighth or Fourteenth
Amendments. I believe applying the Excessive Fines Clause
to the types of charges at issue, improperly trivializes the
Eighth Amendment, the Fourteenth Amendment, and the
Civil Rights Acts. 8

    But, because Los Angeles did not contest this issue either
below or on appeal, 9 I concur in the judgment.



     8
       I think that if federal courts must determine whether particular
parking holdover or other charges violate the Excessive Fines Clause,
there must be some ratio or amount below which the fine or penalty is
unlikely to be or cannot be excessive as a matter of law. Absent such a
ratio or amount, federal courts will need to apply United States v.
Bajakajian, 

(1998) in the way the majority did here,
including, in every case, reviewing “the specific actions of the violator
rather than by taking an abstract view of the violation.” Maj. Op. at 10. I
simply do not see that as an appropriate or productive way to proceed,
even if courts must apply the Excessive Fines Clause to these types of
parking charges. In an analogous context, the Supreme Court has
suggested that a punitive damages award that is within a single digit
multiplier of the compensatory damage award is “more likely to comport
with due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 

, 425 (2003). Though such a “baseline” might cut back on litigation
or simplify the required analysis, it also highlights the legislative nature
of the judgments at issue in our passing on the constitutionality of
different types of parking charges.
    9
      Oral Argument at 16:40–17:50, Pimentel v. City of Los Angeles,
18-56553 (9th Cir. Jan. 7, 2020).