More on Berkeley's PCI Ordinance: Ninth Cir. Constitutional Holdings

Bluebook Citations:

Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated, reversed, and remanded by 505 F.3d 1006 (9th Cir. 2007).

United States v. Sarver, No. CR 05-00673-1 (May 18, 2006, N.D. Cal.)

Summary:

Last week, in discussing Berkeley’s Public Commons Initiative, I noted that the PCI modifies Berkeley’s current ordinances regarding (among other offenses) lying on the sidewalks of the city. The redrafted ordinance reads that “Violation of this section shall be either an infraction or a misdemeanor, in the discretion of the prosecutor. (Ord. 6531-NS § 1, 2000: Ord. 6466-NS §§ 1--3, 5, 1998).” It does not specify whether the violation shall be explicitly criminal or civil, what sorts of punishments the prosecutor may impose, or what form of adjudication alleged offenders will receive.

My concerns about this ordinance were twofold: one, that the ordinance is so vague and broad in its grant of discretion to local prosecutors that it could be constitutionally “void for vagueness” under the 14th Amendment Due Process Clause (cf. Kolender v. Lawson; Papachristou v. City of Jacksonville); and two, that this ordinance is simply a matter of poor local governance that provides no guidance or mechanism for enforcing this law, and so it does a poor job of generally deterring “bad” behavior. To me, the most immediate concern is not the constitutional one (after all, someone would have to be prosecuted to gain legal standing to mount a constitutional challenge against the ordinance), but the practical impediments of how to implement and regulate application of the law.

Nevertheless, I did locate a third possibility from Ninth Circuit jurisprudence: that the ordinance runs afoul of not the Fourteenth Amendment but the Eighth's Cruel & Unusual Punishment Clause. One Ninth Circuit case from 2006 suggests that Berkeley’s Public Commons Ordinance, as redrafted, runs afoul of this circuit’s jurisprudence on the Eighth Amendment. In Jones v. City of Los Angeles, 444 F.3d 1118 (2006), the Ninth Circuit held unconstitutional a Los Angeles city ordinance subjecting the homeless to arrest if they were caught “sitting, lying, or sleeping on public sidewalks”:

“We hold only that, just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict, Robinson, 370 U.S. at 667; or for involuntary public drunkenness that is an unavoidable consequence of being a chronic alcoholic without a home, Powell, 392 U.S. at 551 (White, J., concurring in the judgment); id. at 568 n.31 (Fortas, J., dissenting); the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.” Jones, 444 F.3d at 1138.

In this sense, the Jones opinion could provide the basis of a collateral attack against Berkeley’s redrafted PCI ordinance, which contains some of the same language as the Los Angeles ordinance – “lying” on the sidewalks – and which seems to threaten possibly criminal punishment for violation of the ordinance. Insofar as the conduct Berkeley seeks to regulate conduct that can be characterized as an “unavoidable consequence” of a state of being, Jones provides the direct basis for a compelling constitutional challenge: shortly after the Ninth Circuit directly announced that Los Angeles’ homelessness ordinance violated the Constitution, the City of Berkeley enacted an ordinance which directly violates the rule announced by the Ninth Circuit.

Or, that is, it would have violated the rule. Notably, the Jones opinion was vacated and the case reversed and remanded in 2007 because the parties settled their action and thus filed a joint motion to withdraw the opinion. Jones v. City of Los Angeles, 505 F.3d 1006 (9th Cir. 2007). Although the withdrawal of the opinion may withdraw direct and binding precedent on Berkeley’s ordinance, its reasoning remains in-tact and has not subsequently been abandoned by the Ninth Circuit. In fact, the Jones logic has been followed elsewhere, including in one recent Northern District of California case by Judge White: United States v. Sarver, No. CR 05-00673-1 (May 18, 2006, N.D. Cal.) (locatable at 2006 U.S. Dist. LEXIS 34560) (endorsing the Jones court’s logic that lying, sitting, or sleeping on a sidewalk that is an involuntary, unavoidable consequence of the state of being homeless amounts to an Eighth Amendment violation).