The Ninth Circuit Court of Appeals published an order in Martin v. City of Boise which denied a petition for panel rehearing, denied a petition for rehearing en banc on behalf of the Court, and declared that no further petitions would be entertained. The Court also provided a slightly amended opinion to its earlier opinion from September 2018, as discussed further in our Client Alert Vol. 33 No. 29.

The Court’s opinion had affirmed in part and reversed in part the District Court’s summary judgment in favor of the City of Boise in an action brought by six current or formerly homeless City of Boise residents who alleged that their citations under City ordinances violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court of Appeals held that a local ordinance violated the Cruel and Unusual Punishments Clause of the Eighth Amendment to the extent that it imposed criminal sanctions against homeless persons for sleeping outdoors, on public property, when they had no alternative shelter access available. The Court described the notion that such persons had a choice in the matter a “false premise.”

Concurring in the denial of rehearing en banc, Judge Berzon emphasized that on the merits, the Court’s opinion was limited and held only that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violate the Eighth Amendment. Judge Berzon also addressed a photo of several tents on a public sidewalk that Judge M. Smith highlighted in the dissent from the denial of rehearing en banc. Judge Berzon pointed out the photo was of a Los Angeles sidewalk, not Boise, and was not part of the record. Judge Berzon said the photo did illustrate that “the ordinances criminalizing sleeping in public places were never a viable solution to the homelessness problem.”

Dissenting from the denial of rehearing en banc, Judge M. Smith, joined by Judges Callahan, Bea, Ikuta, Bennett and R. Nelson, maintained that the Court severely misconstrued three areas of binding Supreme Court precedent, and that the Court’s opinion created several splits with other appellate courts. Judge M. Smith said that the Court’s holding had already begun wreaking havoc on local governments, residents, and businesses throughout the circuit. Judge M. Smith stated that the Court’s reasoning would soon prevent local governments from enforcing a host of other public health and safety laws, such as those forbidding public defecation and urination, and that the Court’s opinion “shackles the hands” of public officials trying to combat the serious societal concern of homelessness.

Dissenting from the denial of rehearing en banc, Judge Bennett, joined by Judges Bea, Ikuta, R. Nelson, and joined by Judge M. Smith as to Part II, stated that the Court’s decision, by allowing pre-conviction Eighth Amendment challenges, was wholly inconsistent with the Eighth Amendment’s text and tradition.


The Ninth Circuit seems to have put an end to the litigation unless the Supreme Court weighs in on the matter. The potentially significant impacts of the decision were addressed at the end of Client Alert Vol 33 No. 29.

Recent contact with the City Attorney’s Office for the City of Boise has revealed that the City currently is considering whether to seek review from the SCOTUS. A decision from the City should be forthcoming in the next several weeks.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

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