JONES

dissenting:

There is no question that homelessness is a serious problem and the plight of the homeless, a cause for serious concern. Yet this does not give us license to expand the narrow limits that, in a “rare type of case,” the Cruel and Unusual Punishment Clause of the Eighth Amendment places on sub *1139 stantive criminal law. The majority sees it differently, concluding that the Eighth Amendment forbids the City of Los Angeles from enforcing an ordinance which makes it unlawful to sit, sleep, or lie on sidewalks. It gets there by cobbling together the views of dissenting and concurring justices, creating a circuit conflict on standing, and overlooking both Supreme Court precedent, and our own, that restrict the substantive component of the Eighth Amendment to crimes not involving an act. I disagree, and therefore dissent, for a number of reasons.

Los Angeles Municipal Code (LAMC) § 41.18(d) does not punish people simply because they are homeless. It targets conduct — sitting, lying or sleeping on city sidewalks — that can be committed by those with homes as well as those without. Although the Supreme Court recognized in Robinson v. California, 370 U.S. 660 , 82 S.Ct. 1417…

Opinion by Judge Wardlaw; Dissent by Judge Rymer

Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed this Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles’s city limits. Appellants seek limited injunctive relief from enforcement of the ordinance during nighttime hours, i.e., between 9:00 p.m. and 6:30 a.m., or at any time against the temporarily infirm or permanently disabled. We must decide whether the Eighth Amendment right to be free from cruel and unusual punishment prohibits enforcement of that law as applied to homeless individuals involuntarily sitting, lying, or sleeping on the street due to the unavailability of shelter in Los Angeles.

I. Facts and Procedural Background

The facts underlying this appeal are largely undisputed. Edward Jones, Patricia Vinson, George Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie (“Appellants”) are homeless individuals who live on the streets of Los Angeles’s Skid Row district. Appellees are the City of Los Angeles, Los…

I. Facts and Procedural Background

The facts underlying this appeal are largely undisputed. Edward Jones, Patricia Vinson, George Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie (“Appellants”) are homeless individuals who live on the streets of Los Ange- les’s Skid Row district. Appellees are the City of Los Ange- les, Los Angeles Police Department (“L.A.P.D.”) Chief William Bratton, and Captain Charles Beck (“Appellees” or “the City”). Federal law defines the term “homeless individu- al” to include

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

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

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

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

(C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommoda- tion for human beings.

Stewart B. McKinney Homeless…