Los Angeles Municipal Code § 41.18(d) (2005) states:
No person shall sit, lie or sleep in or upon any street, sidewalk or other public way.
The provisions of this subsection shall not apply to persons sitting on the curb portion of any sidewalk or street while attending or viewing any parade permitted under the provisions of Section 103.111 of Article 2, Chapter X of this Code; nor shall the provisions of this subsection supply [sic] to persons sitting upon benches or other seating facilities provided for such purpose by municipal authority by this Code.
Violations of the code are misdemeanors.
In a decision published today, Jones v. City of Los Angeles, the Ninth Circuit held that this provision violates the Eighth Amendment’s ban on Cruel & Unusual Punishments by punishing the status of homelessness. To satisfy the Constitution, Judge Wardlaw concluded, the City of Los Angeles must a) provide beds in homeless shelters for every one of Los Angeles’s homeless, or else b) not enforce this provision at night in particular places such that the City’s homeless are not arrested for conduct that is the inevitable consequence of their homelessness. Judge Rymer wrote a strong dissent that accuses the majority of “cobbling together the views of dissenting and concurring justices, creating a circuit conflict on standing, and overlooking both Supreme Court precedent, and our own.”
I am particularly interested in the scope of the holding and the remedy chosen by the court. I’m not an Eighth Amendment expert, but I don’t think I have ever heard of a statute that violated the Eighth Amendment only sometimes (when no beds are available city wide) and only when it was enforced at particular hours. Does any one know if this has been done before? I understand what the majority was trying to do, but at first blush the scope and remedy don’t seem to fit in particularly well with preexisting law.
Thanks to How Appealing for the link.