Jack Potter v. City of Lacey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK POTTER, No. 21-35259

Plaintiff-Appellant,

D.C. No.

v. 3:20-cv-05925-RJB

CITY OF LACEY, ORDER

Defendant-Appellee, CERTIFYING

QUESTION TO THE

and WASHINGTON

SUPREME COURT

KEN SEMKO,

Defendant.

Filed August 18, 2022

Before: Kim McLane Wardlaw, Ronald M. Gould, and

Mark J. Bennett, Circuit Judges.

Order;

Dissent by Judge Bennett

2 POTTER V. CITY OF LACEY

SUMMARY *

Civil Rights

In an action involving federal and state constitutional

challenges to the City of Lacey’s recently passed RV

Parking Ordinance, the panel certified the following

question to the Washington Supreme Court:

Is the right to intrastate travel in Washington

protected under the Washington State

Constitution, or other Washington law? If

Washington state law protects the right to

intrastate travel, does the RV Parking

Ordinance codified in LMC §§ 10.14.020–

045 violate Jack Potter’s intrastate travel

rights?

In certifying the question, the panel noted that it is well-

established that adjudication of federal constitutional claims

should be avoided when alternative state grounds are

available, even when the alternative ground is one of state

constitutional law. Here, the certified question was outcome

determinative—if Washington law required the panel to

invalidate the ordinance because it violated plaintiff’s right

to intrastate travel under state law, then the panel would not

need to adjudicate the federal claims. Although the

Washington Supreme Court had concluded that a right to

intrastate travel existed under the United States Constitution,

it has never decided whether this right exists under the

Washington State Constitution or any other source of

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

POTTER V. CITY OF LACEY 3

Washington law. Because this issue was complex and

involved policy considerations that were best left to the State

of Washington’s own courts, the panel concluded that it was

prudent to certify this question to the Washington Supreme

Court so that it could determine its own law in the first

instance.

Dissenting, Judge Bennett stated that the RV Parking

Ordinance does not violate any conception of the right to

intrastate travel, even assuming that such right exists—

whether under the Washington or federal constitution. The

majority therefore erred in (1) certifying two questions of

state law that do not meet the requirements for Washington

law because their answers are non-dispositive; (2) ignoring

that there is already a definitive answer to the certified

question under existing law; and (3) invoking constitutional

avoidance to avoid rejecting the near-frivolous

constitutional challenges under the Fourth and Eighth

Amendments.

COUNSEL

James E. Lobsenz, Carney Badley Spellman P.S., Seattle,

Washington; Carrie Graf and Scott Crain, Northwest Justice

Project, Olympia, Washington; for Plaintiff-Appellant.

John E. Justice, Law Lyman Daniel Kamerrer &

Bogdanovich P.S., Olympia, Washington, for Defendant-

Appellee.

4 POTTER V. CITY OF LACEY

ORDER

We respectfully ask the Washington Supreme Court to

answer the certified question presented below, pursuant to

Revised Code of Washington § 2.60.020, because “it is

necessary to ascertain the local law of [Washington] state in

order to dispose of [this] proceeding and the local law has

not been clearly determined.” This case involves federal and

state constitutional challenges to the City of Lacey’s recently

passed RV Parking Ordinance. Jack Potter, a former Lacey

resident who lives in a trailer hitched to his truck, challenges

the RV Parking Ordinance as violative of his rights under

both the United States Constitution and Washington State

Constitution.

Pertinent to this certification order, Potter claims that the

RV Parking Ordinance violates his right to intrastate travel

under the Washington State Constitution. We determine that

this issue is dispositive and has not been settled by

Washington case law. Thus, we respectfully certify the

following question to the Washington Supreme Court:

Is the right to intrastate travel in Washington

protected under the Washington State

Constitution, or other Washington law? If

Washington state law protects the right to

intrastate travel, does the RV Parking

Ordinance codified in LMC §§ 10.14.020–

045 violate Jack Potter’s intrastate travel

rights?

I.

We summarize the material facts. The Lacey City

Council enacted Ordinance 1551 on September 12, 2019.

Ordinance 1551 amended Lacey’s parking laws so that the

POTTER V. CITY OF LACEY 5

laws now restrict the parking of a “recreational vehicle,

motor home, mobile home, trailer, camper, vessel or boat

upon the improved or unimproved portion of any street,

alley, public right-of-way, or publicly owned parking lot for

more than four hours” with two exceptions. LMC

§ 10.14.020(B). First, an RV owner may park temporarily

for the purposes of loading or unloading. Id.

§ 10.14.020(B)(1). Second, an RV owner may obtain a

permit according to the City Manager’s permitting policies

and procedures. See id. §§ 10.14.020(B)(2), 10.14.045.

If neither exception applies and an RV owner parks for

more than four hours on Lacey public land, the ordinance

prohibits an RV owner from parking on any City of Lacey

“street, alley, public right-of-way or publicly owned parking

lot” for the following 24 hours. Id. § 10.14.020(C). Lacey

punishes violations of these parking provisions with a $35

fine and immediate impoundment of the RV. Id.

§ 10.14.040. These two provisions work in tandem to

effectively render it impossible for vehicle-sheltered

individuals to live in an RV on Lacey’s public land.

Two weeks after the Lacey City Council passed

Ordinance 1551, the City Manager adopted a two-tiered

permitting system for RVs. The City Manager created one

RV permitting system for “Residents,” meaning a “Lacey

homeowner or renter,” and another for “Non-Residents,”

meaning an “[i]ndividual without a permanent address.”

The resident permitting system allows homeowners or

renters to request up to four temporary permits each year for

visitors, allowing them to park their RVs for up to 48 hours

within 150 feet of the resident’s home. To obtain these

permits, the resident must provide proof of residency, the

license plate numbers for the RVs, and the address where the

vehicle will be parked.

6 POTTER V. CITY OF LACEY

The non-resident permitting system allows someone

without a permanent address to “receive a temporary parking

permit in a designated permitted parking area,” so long as

the requestor is “actively engaged with social services.” To

obtain a permit, the non-resident must provide a

government-issued ID, proof of insurance, and proof of

vehicle registration. Anyone requesting a non-resident

permit must also disclose all other occupants of the RV.

Before issuing a non-resident permit, the Lacey Police

Department must conduct a background check on all of the

RV’s occupants and may deny a permit if the background

check reveals that any of the occupants have an existing or

outstanding warrant or if any occupant is a registered sex

offender. Non-resident permits are valid only “within

designated areas of the City for the period indicated on the

permit not to exceed 12 hours per day.”

For those without a permanent address in Lacey, such as

Potter, the permitting exception has been available in theory,

but not in practice. Although various Lacey officials have

discussed plans to designate a “safe lot” in which non-

resident permit holders could park their RVs, Lacey has

never actually designated a safe lot. The district court

remarked that a “safe lot does not appear to have come to

fruition.” The City has not contested this in their briefing

and the City conceded as much at oral argument. Therefore,

the non-resident permitting system is essentially a bridge to

nowhere.

This brings us to our plaintiff, Jack Potter. Potter is a 64-

year-old man who lived in Lacey for most of the period

between 1997 and 2019. Since 2016, Potter’s housing

stability has varied—at times he lived at a friend’s house, at

times in a car, and at times in a home on Martin Way East,

where he operated the Veterans’ Christian Charity’s

POTTER V. CITY OF LACEY 7

homeless outreach program. Shortly after spending a stint

in the hospital, Potter began living in a 23-foot travel trailer

that he hitched to his truck.

In the Spring of 2019, a police officer knocked on

Potter’s door to tell him that he could no longer park in the

private lot where he had been parking. Potter asked the

officer where he should go, and the officer informed him that

the Lacey City Hall parking hall lot did not have any “No

Parking” signs. Potter promptly moved to the City Hall lot,

making it his home between May 2019 and October 2019,

along with approximately 27 other people who were also

living in their vehicles parked in the lot.

On September 27, 2019, after Lacey had passed the RV

Parking Ordinance, an officer told Potter and the others

staying in the City Hall parking lot that they had to leave

within three days or face a ticket. Potter stayed in the

parking lot because he hoped to be able to go to a doctor’s

appointment in Lacey on October 2. On September 30,

however, an officer cited him for violating LMC

§ 10.14.020, and the next day, officers told Potter he needed

to leave the parking lot or they would impound his home.

Fearing that he would lose his home permanently because he

could not afford to pay impoundment fees, Potter left Lacey

that day. Throughout all these interactions, the police never

directed Potter to a shelter or anywhere else within Lacey to

park—Potter had not applied for a non-resident parking

permit, but as stated above, a non-resident permit would

have made little difference given that Lacey had failed to

designate any safe lots where Potter could have used the

permit. In his declaration, Potter stated that if he could park

his trailer in Lacey without risk of impoundment, he “would

immediately move back to Lacey.”

8 POTTER V. CITY OF LACEY

In August 2020, Potter sued Lacey in Thurston County

Superior Court for damages, declaratory relief, and

injunctive relief, claiming that the RV Parking Ordinance

codified at LMC §§ 10.14.010–045 violated several of his

rights under the United States Constitution and the

Washington State Constitution. Lacey then removed the

case to federal court. Both parties moved for summary

judgment, and the district court ultimately granted summary

judgment to Lacey on all of Potter’s claims. Potter timely

filed a notice of appeal on April 6, 2021, appealing the

district court’s rulings on his Fourth Amendment claim, his

Eighth Amendment claim, his right to intrastate travel claim

under the United States Constitution, and his right to

intrastate travel claim under the Washington State

Constitution.

II.

A.

When state law issues are unclear, we may certify a

question to a state’s highest court “to obtain authoritative

answers.” Toner for Toner v. Lederle Labs., Div. of Am.

Cyanamid Co., 779 F.2d 1429, 1432 (9th Cir. 1986),

amended by 831 F.2d 180 (9th Cir. 1987). We have

concluded that certification may be especially necessary

when a panel faces “complex” state law issues carrying

“significant policy implications.” See, e.g., Centurion

Props. III, LLC v. Chi. Title Ins. Co., 793 F.3d 1087, 1089

(9th Cir. 2015); McKown v. Simon Prop. Grp. Inc., 689 F.3d

1086, 1091 (9th Cir. 2012).

Washington law authorizes the state supreme court to

accept certified questions from the federal courts. Wash.

Rev. Code § 2.60.020. Washington’s certification statute

allows certification where “it is necessary to ascertain the

POTTER V. CITY OF LACEY 9

local law of [Washington] state in order to dispose of [a]

proceeding and the local law has not been clearly

determined.” Id. We certify questions that “we believe that

the Washington Supreme Court . . . is better qualified to

answer. . . in the first instance.” Parents Involved in Cmty.

Schs. v. Seattle Sch. Dist., No. 1, 294 F.3d 1085, 1092 (9th

Cir. 2002). Thus, certification is especially appropriate

when a question of law “‘has not been clearly determined’

by the Washington courts,” and “the answer to our question

is outcome determinative.” Bylsma v. Burger King Corp.,

676 F.3d 779, 783 (9th Cir. 2012) (quoting Wash. Rev. Code

§ 2.60.020).

B.

Next, we identify the issue that is the basis of our

certification order: whether Washington law protects the

right to intrastate travel, and if it does, whether Lacey’s RV

Parking Ordinance violated Potter’s right to intrastate travel.

On appeal before us, Potter challenges Lacey’s RV Parking

Ordinance under the Fourth, Eighth, and Fourteenth

Amendments of the United States Constitution, as well as

under the Washington State Constitution. “It is well-

established that [we] should avoid adjudication of federal

constitutional claims when alternative state grounds are

available . . . . even when the alternative ground is one of

state constitutional law.” Cuviello v. City of Vallejo,

944 F.3d 816, 826 (9th Cir. 2019) (quoting Hewitt v. Joyner,

940 F.2d 1561, 1565 (9th Cir. 1991) (cleaned up)). Thus,

this question is outcome determinative—if Washington law

requires us to invalidate the ordinance because it violates

Potter’s right to intrastate travel under state law, then we

need not adjudicate his federal claims.

To date, no Washington case has held that a right to

intrastate travel exists under Washington state law—to the

10 POTTER V. CITY OF LACEY

extent Washington courts have found a right to intrastate

travel, they have done so under only the United States

Constitution. Potter grounds his Washington State intrastate

travel claim in Eggert v. City of Seattle, 505 P.2d 801 (Wash.

1973), and Macias v. Dep’t of Lab. & Indus., 668 P.2d 1278

(Wash. 1983), but we conclude that neither case answers this

question.

In Eggert, the Washington Supreme Court recognized a

right to intrastate travel, but solely based on the United

States Constitution. See Eggert, 505 P.2d at 804 (“The right

to travel is a right applicable to intrastate as well as interstate

commerce.”). In reaching this conclusion, the Washington

Supreme Court relied on United States Supreme Court

decisions discussing the right to travel under the United

States Constitution. See id. at 802–05. It made no reference

to the Washington State Constitution or any other state legal

authorities.

Inversely, the Washington Supreme Court in Macias

grounded the right to interstate travel in both the United

States Constitution and the Washington State Constitution,

but it did not discuss a right to intrastate travel. In Macias,

the Washington Supreme Court invalidated a law that denied

migrant farm workers compensation benefits unless they

earned at least $150 from the farm that employed them.

668 P.2d at 1279–1280, 1285. The Court grounded its

rationale firmly in the right to interstate travel. Id. at 1284

(interpreting the Supreme Court’s cases concerning

“interstate travel” and “interstate migration”). Without

further analysis, the Court ended its opinion by stating that

Washington’s “state constitution privileges and immunities

clause independently supports our conclusion that this

provision denies appellants equal protection of the law.” Id.

at 1285 (citation omitted). Given that the Court’s conclusion

POTTER V. CITY OF LACEY 11

concerned solely the right to interstate travel, this statement

provides no foundation for a right to intrastate travel under

the Washington State Constitution.

Potter cites a few additional state appellate and state

supreme court cases in his reply brief that purportedly

support a right to intrastate travel under Washington law, but

all of these cases are likewise inapposite. See State v. Sims,

256 P.3d 285 (Wash. 2011) (recognizing an appellate court’s

conclusion that a sentencing condition violated the federal

right to intrastate travel); State v. Schimelpfenig, 115 P.3d

338, 339 (Wash Ct. App. 2005) (invalidating a banishment

order as violative of the right to intrastate travel under the

federal constitution); State v. Alphonse, 197 P.3d 1211,

1219–20 (Wash. Ct. App. 2008) (recognizing federal right to

intrastate travel).

Therefore, we have determined that although the

Washington Supreme Court has concluded that a right to

intrastate travel exists under the United States Constitution,

it has never decided whether this right exists under the

Washington State Constitution or any other source of

Washington law. Because this issue is complex and involves

policy considerations that are best left to the State of

Washington’s own courts, we have concluded that it is

prudent to certify this question to the Washington Supreme

Court so that it may determine its own law in the first

instance. 1

1

Unlike our dissenting colleague, we do not presume to know how

the Washington Supreme Court will construe its own constitution. The

dissent presumes to know the way in which the Washington Supreme

Court will define a right to intrastate travel under the Washington State

Constitution (should the Washington Supreme court find such a right),

and then it urges us to avoid certification because it does not believe that

12 POTTER V. CITY OF LACEY

III.

In light of the foregoing discussion, we hereby certify the

following question to the Washington Supreme Court:

Is the right to intrastate travel in Washington

protected under the Washington State

Constitution, or other Washington law? If

Washington state law protects the right to

intrastate travel, does the RV Parking

Ordinance codified in LMC §§ 10.14.020–

045 violate Jack Potter’s intrastate travel

rights?

We do not intend the phrasing of our question to restrict

the Washington Supreme Court’s consideration of this issue.

We recognize that the Washington Supreme Court may, in

its discretion, reformulate the question. Broad v.

Mannesmann Anlagenbau AG, 196 F.3d 1075, 1076 (9th Cir.

1999).

The Clerk of the Court is directed to transmit to the

Washington Supreme Court, under official seal of the Ninth

Circuit, this order and request for certification along with

copies of all relevant briefs and excerpts of record pursuant

to Wash. Rev. Code §§ 2.60.020 and 2.60.030.

the City of Lacey has violated the right that it predicts the Washington

Supreme Court will find. Dissent at 18–25. Thankfully, the Washington

State Legislature has provided us with a process that allows us to avoid

building an important constitutional ruling on a pile of guesses about

how Washington state courts will direct Washington state law—

certification pursuant Wash. Rev. Code § 2.60.020. Out of respect for

the Washington judiciary’s ability to interpret its own constitution, we

choose the certification process here.

POTTER V. CITY OF LACEY 13

If the Washington Supreme Court accepts the certified

question, we designate Jack Potter as the party to file the first

brief pursuant to Wash. R. App. P. 16.16(e)(1).

Further proceedings before us are stayed pending the

Washington Supreme Court’s decision whether it will accept

review and, if so, receipt of the answer to the certified

question. This case is withdrawn from submission until

further order. The Clerk is directed to administratively close

this docket pending further order. The panel will resume

control and jurisdiction upon receipt of an answer to the

certified question or upon the Washington Supreme Court’s

decision to not accept the certified question.

When the Washington Supreme Court decides whether

to accept the certified question, the parties will promptly file

a joint status report informing us of the decision. If the

Washington Supreme Court accepts the certified question,

the parties will file another joint status report informing us

when the Washington Supreme Court issues an answer to the

certified question promptly upon the issuance of that

determination.

IT IS SO ORDERED.

/s/ Mary H. Murguia

Chief Judge Mary H. Murguia

U.S. Court of Appeals for the Ninth Circuit

BENNETT, Circuit Judge, dissenting:

Jack Potter challenges the City of Lacey, Washington’s

four-hour daily cap on recreational vehicle (“RV”) parking

on public streets and parking lots, which applies unless the

RV owner is loading or unloading or has obtained a

14 POTTER V. CITY OF LACEY

municipal parking permit. See Lacey Mun. Code

§ 10.14.020(B). The RV Parking Ordinance does not violate

any conception of the right to intrastate travel, even

assuming that such right exists—whether under the

Washington or federal constitution. Nor does the RV

Parking Ordinance violate either the Fourth Amendment on

its face or the Eighth Amendment’s prohibition on cruel and

unusual punishments.

In resisting these conclusions, the majority commits

three principal errors. First, it certifies two questions of state

law that do not meet the requirements for certification under

Washington law because their answers are non-dispositive.

Second, the majority ignores that there is already a definitive

answer to the certified questions under existing law: the RV

Parking Ordinance does not infringe any conception of a

putative right to intrastate travel. And third, it

inappropriately invokes constitutional avoidance to avoid

rejecting the near-frivolous constitutional challenges under

the Fourth and Eighth Amendments. For these reasons, I

respectfully dissent from the majority’s decision to burden

the Washington Supreme Court with these unnecessary

questions.

I. IMPROPRIETY OF CERTIFICATION

This case is not a proper candidate for certification to the

Washington Supreme Court. We should instead assume

without deciding that Washington law recognizes all forms

of a right to intrastate travel and hold that the RV Parking

Ordinance would not violate such a right, no matter how

enunciated. As explained below, a municipality’s four-hour

daily cap on RV parking on public streets and parking lots

does not violate any conception of the putative right to

intrastate travel. Because we can make that determination

without answering any dispositive, unsettled questions of

POTTER V. CITY OF LACEY 15

Washington law, this case does not meet the requirements

for certification. 1

Under Washington law, a federal court may certify a

question of state law when “it is necessary to ascertain the

local law of this state in order to dispose of such proceeding

and the local law has not been clearly determined.” Wash.

Rev. Code § 2.60.020 (emphasis added). The Washington

Supreme Court “may entertain” the petition certifying the

question. Wash. R. App. P. 16.16(a). Under the certification

requirement, if “the answer to our question is outcome

determinative,” then “its resolution is ‘necessary . . . to

dispose’ of this appeal.” Bylsma v. Burger King Corp.,

676 F.3d 779, 783 (9th Cir. 2012) (ellipsis in original)

(quoting Wash. Rev. Code § 2.60.020). But the answer to

the certified questions the majority poses will not “determine

the outcome of the appeal currently pending in this court.”

Taylor v. Burlington N. R.R. Holdings Inc., 904 F.3d 846,

853 (9th Cir. 2018). 2 If there is no right to intrastate travel

under Washington law or if there is such a right but no

violation here, we would still need to decide Potter’s

challenges under the putative federal constitutional right to

intrastate travel, the Fourth Amendment, and the Eighth

1

Certification was first suggested in a question from the panel at

oral argument, and no party has requested certification.

2

Even as a prudential matter under more permissive state

certification procedures, our court has exercised judicial restraint by

certifying outcome-determinative questions rather than merely questions

that could be outcome-determinative. See, e.g., Cal. R. Ct. 8.548(a)(1)

(authorizing the certification of questions of California law that “could

determine the outcome of a matter pending in the requesting court”);

Beeman v. Anthem Prescription Mgmt., LLC, 689 F.3d 1002, 1005 (9th

Cir. 2012) (en banc) (certifying a question to the Supreme Court of

California that “will determine the outcome of this appeal”).

16 POTTER V. CITY OF LACEY

Amendment. Only if there is a right to travel under

Washington law and if the RV Parking Ordinance violates

that right would the answers to our two certified questions

resolve this case. 3

It is true that “we have an obligation to consider whether

novel state-law questions should be certified—and we have

been admonished in the past for failing to do so.” Parents

Involved in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 294 F.3d

1085, 1086 (9th Cir. 2002). “Thus, we have certified

questions where we’ve ‘believe[d] that the Washington

Supreme Court . . . [was] better qualified to answer . . . in the

first instance.’” Pacheco v. United States, 21 F.4th 1183,

1187 (9th Cir. 2022) (alterations in original) (quoting

3

Some of our cases suggest that the Washington statute authorizes

certification when “a dispositive question of state law applies to the

claim.” Phonsavanh Phongmanivan v. Haynes, 918 F.3d 1021, 1022

(9th Cir. 2019) (emphasis added); see also, e.g., Amaker v. King County,

540 F.3d 1012, 1015 (9th Cir. 2008) (certifying a question when “the

answer to the question is dispositive of Amaker’s common law claim”).

But that is a distinction without a difference here because the RV Parking

Ordinance does not violate any existing conception of a right to intrastate

travel. Certification is thus improper because nothing in this case

“depends entirely upon the answer provided by the Supreme Court of

Washington to our certified question.” J&J Celcom v. AT&T Wireless

Servs., Inc., 481 F.3d 1138, 1141 (9th Cir. 2007).

The majority’s view of certification might not carry the day,

anyway. “The state court and federal court may disagree as to whether

a question is truly determinative of the outcome of the case, thus leading

the state court to refuse to answer the certified question.” Dolores K.

Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens

of Federalism, 78 Va. L. Rev. 1671, 1685 (1992). And the Washington

Supreme Court employs its own version of constitutional avoidance. See

Stout v. Felix, 493 P.3d 1170, 1172 (Wash. 2021) (“We will not reach a

constitutional issue unless absolutely necessary to the determination of

the case.” (citation and internal quotation marks omitted)).

POTTER V. CITY OF LACEY 17

Parents Involved, 294 F.3d at 1092). But certification is

generally inappropriate in a case that does not “raise[] a new

and substantial issue of state law in an arena that will have

broad application.” Kremen v. Cohen, 325 F.3d 1035, 1038

(9th Cir. 2003). The potential Washington right to intrastate

travel is not such an issue given the facts here.

Courts should certify only substantial issues of broad

application out of “the spirit of comity and federalism.” Id.

“The primary basis in history and theory for the practice of

certifying questions is that it furthers the goals of our

federalism.” Bruce M. Selya, Certified Madness: Ask a Silly

Question . . . , 29 Suffolk U. L. Rev. 677, 679 (1995).

Because this case does not require us to decide whether

Washington law recognizes a right to intrastate travel,

certification does not “save[] time, energy, and resources”

for either our court or the Washington Supreme Court, nor

does it otherwise “help[] build a cooperative judicial

federalism.” Perez-Farias v. Global Horizons, Inc.,

669 F.3d 927, 928 (9th Cir. 2011).

II. CERTIFIED QUESTIONS

The majority certifies two questions to the Washington

Supreme Court:

Is the right to intrastate travel in Washington

protected under the Washington State

Constitution, or other Washington law? If

Washington state law protects the right to

intrastate travel, does the RV Parking

Ordinance codified in [Lacey Municipal

Code] §§ 10.14.020–045 violate Jack

Potter’s intrastate travel rights?

Majority Op. 4.

18 POTTER V. CITY OF LACEY

This case requires no answer to the first question because

we know the answer to the second. Even assuming that

Washington recognizes a right to intrastate travel as broad as

any previous conceptions, 4 the RV Parking Ordinance does

not violate a right so broadly understood.

Our sister circuits have recognized and considered two

versions of a federal constitutional right to intrastate travel.

One version is the “right to travel locally through public

spaces and roadways.” Johnson v. City of Cincinnati,

310 F.3d 484, 495 (6th Cir. 2002); Lutz v. City of York,

899 F.2d 255, 268 (3d Cir. 1990). This conception might

also be called, “the right to free movement.” Ramos v. Town

of Vernon, 353 F.3d 171, 176 (2d Cir. 2003). The other

version of the right to intrastate travel is “correlative” to the

right to interstate travel. King v. New Rochelle Mun. Hous.

Auth., 442 F.2d 646, 648 (2d Cir. 1971). The right to

interstate travel “embraces at least three different

components”: “the right of a citizen of one State to enter and

to leave another State, the right to be treated as a welcome

visitor rather than an unfriendly alien when temporarily

present in the second State, and, for those travelers who elect

to become permanent residents, the right to be treated like

other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500

(1999). 5 The Supreme Court has not identified the source of

4

See, e.g., Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir. 2003)

(assuming without deciding that Tennessee law recognized a

constitutionally protectible property interest in continuing medical

studies before rejecting a claim based on that interest).

5

I have found no state or territorial appellate decision recognizing

or even assuming a broader conception of the right to intrastate travel,

whether under state, territorial, or federal law. See, e.g., State v.

Pelletier, 125 A.3d 354, 356 n.5 (Me. 2015) (per curiam) (holding that

“[w]ithout speculating as to whether such a right exists . . . driver’s

POTTER V. CITY OF LACEY 19

licenses are a valid limitation on the right to intrastate travel, to the extent

that such a right is protected under the U.S. Constitution”); Malone v.

Potomac Highlands Airport Auth., 786 S.E.2d 594, 600 n.9 (W. Va.

2015) (assuming without deciding the existence of a right to move from

place to place but not a right to access certain public places); In re

Contest of Nov. 8, 2011 Gen. Elec., 40 A.3d 684, 697–99 (N.J. 2012)

(applying intermediate scrutiny to “[r]estrictions that burden a [political]

candidate’s intrastate movement”); State v. Doe, 231 P.3d 1016, 1032

(Idaho 2010) (recognizing that the Supreme Court “has not clearly

articulated a right to intrastate travel”); Formaro v. Polk County,

773 N.W.2d 834, 840 (Iowa 2009) (assuming without deciding a

coterminous federal and state right to free ingress to and egress from

certain parts of the state); Commonwealth v. Weston W., 913 N.E.2d 832,

839–41 (Mass. 2009) (recognizing a state right “to move freely within

the Commonwealth”); In re Marriage of Guffin, 209 P.3d 225, 227–28

(Mont. 2009) (recognizing a federal constitutional “right to freely travel

within each of the states”); State v. Holbach, 763 N.W.2d 761, 765 (N.D.

2009) (recognizing a federal “constitutional right to intrastate travel” that

“is not absolute and may be restricted”); Standley v. Town of Woodfin,

661 S.E.2d 728, 730 (N.C. 2008) (recognizing a federal and state “right

to travel upon the public streets of a city” (citation omitted)); State v.

J.P., 907 So.2d 1101, 1113 (Fla. 2004) (recognizing a state “right to

intrastate travel” including “the inherent right to window shop, saunter

down a sidewalk, and wave to friends and passersby with no fear of

arrest” (citation omitted)); In re J.W., 787 N.E.2d 747, 763 (Ill. 2003)

(recognizing a federal constitutional right to intrastate travel); Davis v.

United States, 781 A.2d 729, 731 n.2 (D.C. 2001) (“Any fundamental

right to travel does not encompass a right to engage in intrastate illegal

drug activity within 1000 feet of a school.”); State v. Burnett, 755 N.E.2d

857, 863–65 (Ohio 2001) (recognizing “the [federal] right to travel

locally through public spaces and roadways of this state”); Brandmiller

v. Arreola, 544 N.W.2d 894, 898–900 (Wis. 1996) (recognizing a state

“right to travel intrastate,” including “to move freely about one’s

neighborhood, even in an automobile”); Tobe v. City of Santa Ana,

892 P.2d 1145, 1163–64 (Cal. 1995) (recognizing a state right to

intrastate and intramunicipal travel that allows for “the incidental impact

on travel of a law having a purpose other than restriction of the right to

travel, and which does not discriminate among classes of persons by

penalizing the exercise by some of the right to travel”); Miss. High Sch.

Activities Ass’n v. Coleman ex rel. Laymon, 631 So.2d 768, 774–75

20 POTTER V. CITY OF LACEY

(Miss. 1994) (understanding the federal right to travel to include an

intrastate component); Mayo v. Nat’l Farmers Union Prop. & Cas. Co.,

833 P.2d 54, 58–60 (Colo. 1992) (recognizing a right to intrastate travel

that does not include a fundamental right to drive an automobile on state

highways); People in Interest of J.M., 768 P.2d 219, 221 (Colo. 1989)

(recognizing state “rights of freedom of movement and to use the public

streets and facilities in a manner that does not interfere with the liberty

of others”); Bruno v. Civil Serv. Comm’n, 472 A.2d 328, 333–34 (Conn.

1984) (recognizing a federal right to intrastate travel); Gilman v. Martin,

662 P.2d 120, 125 (Alaska 1983) (“The right to interstate or intrastate

travel is impinged upon only when a governmental entity creates

distinctions between residents based upon the duration of their residency,

and not when distinctions are created between residents and

nonresidents.”); Loiselle v. City of East Providence, 359 A.2d 345, 348

(R.I. 1976) (recognizing “that the fundamental right to travel, be it of the

interstate or intrastate variety, does not embody the right to reside where

one wishes and demand municipal employment in some other

governmental geographical subdivision” (footnote omitted)); In re

Barcomb, 315 A.2d 476, 482 (Vt. 1974) (“It may be that that [federal

constitutional] right [to interstate travel] extends to intrastate travel, and

it may include a correlative right to live in the place of one’s choice.”);

Eggert v. City of Seattle, 505 P.2d 801, 804 (Wash. 1973) (recognizing

that the federal “right to travel is a right applicable to intrastate as well

as interstate commerce”); Vanderzon v. Vanderzon, 402 P.3d 219, 231–

32 (Utah Ct. App. 2017) (rejecting the argument that the federal “right

to interstate travel includes the right of intrastate travel and the right to

establish a residence”); Virgin Islands v. Fredericks, 54 V.I. 161, 172

(V.I. Super. Ct. 2011) (recognizing that “citizens of the Virgin Islands

have a fundamental right to traverse the public roads of the territory”);

Johansen v. La. High Sch. Athletic Ass’n, 916 So.2d 1081, 1090 (La. Ct.

App. 2005) (rejecting a challenge to a state athletic association’s decision

of bona fide residency “even if a right to intrastate travel exists under our

state constitution”); State v. Hershberger, 5 P.3d 1004, 1010 (Kan. Ct.

App. 2000) (recognizing that laws “regulating traffic and establishing

rules of the road . . . were not designed to deter interstate or intrastate

migration, nor do they penalize someone for exercising the right to

travel”); State v. Cuypers, 559 N.W.2d 435, 437 (Minn. Ct. App. 1997)

(recognizing a correlative right to intrastate travel); State v. French, 883

P.2d 644, 653 n.9 (Haw. Ct. App. 1994) (recognizing that the federal

“right to travel is not a right to travel in any manner one wants, free of

POTTER V. CITY OF LACEY 21

the first component. Id. at 501. The latter two components

spring from the Privileges and Immunities Clause of Article

IV, § 2, and the Privileges or Immunities Clause of the

Fourteenth Amendment, respectively. Id. at 501–03.

The RV Parking Ordinance burdens neither version of

the putative right to intrastate travel. And because the RV

Parking Ordinance does not burden the putative right, there

is no occasion to assess what form of means-end scrutiny, if

any, would apply. 6

state regulation” (citation omitted)); City of Spokane v. Port, 716 P.2d

945, 946 (Wash. Ct. App. 1986) (recognizing a fundamental federal

constitutional right to travel that “applies both to interstate and intrastate

travel”); Musto v. Redford Township, 357 N.W.2d 791, 792 (Mich. Ct.

App. 1984) (recognizing a state right to travel between locations within

a state); Josephine Cnty. Sch. Dist. No. 7 v. Or. Sch. Activities Ass’n,

515 P.2d 431, 437 (Or. Ct. App. 1973) (recognizing that “the right to

travel intrastate is a right protected from discriminatory regulation to the

same extent as is [the] right to freedom of interstate movement” (footnote

omitted)).

6

This is a common approach across constitutional rights. See, e.g.,

N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022)

(assessing whether the Second Amendment covers an individual’s

conduct and if it does, assessing whether sufficient government

justification displaces the presumptive constitutional protection of the

right); United States v. Stevens, 559 U.S. 460, 468–72 (2010) (assessing

whether the First Amendment protects specific speech and if it does,

applying the applicable doctrine); Ky. Dep’t of Corr. v. Thompson,

490 U.S. 454, 460 (1989) (assessing whether there is a Fourteenth

Amendment liberty or property interest with which the state has

interfered and if there is, assessing whether the procedures effectuating

the deprivation were constitutionally sufficient); Sup. Ct. of Va. v.

Friedman, 487 U.S. 59, 64–65 (1988) (assessing whether the Privileges

and Immunities Clause covers a citizenship or residency classification

22 POTTER V. CITY OF LACEY

A. Right to Free Movement

The RV Parking Ordinance does not violate any right to

free movement, which some courts have recognized

encompasses the “right to travel locally through public

spaces and roadways.” Johnson, 310 F.3d at 495; Lutz,

899 F.2d at 268. “[T]he right protects movement between

places and has no bearing on access to a particular place.”

Williams v. Town of Greenburgh, 535 F.3d 71, 75 (2d Cir.

2008); see also Hannemann v. S. Door Cnty. Sch. Dist.,

673 F.3d 746, 757 (7th Cir. 2012) (“The right to intrastate

travel protects the right to move from place to place, not the

right to access certain public places.”). Thus, impermissible

burdens on intrastate travel must involve “a burden imposed

on [plaintiffs’] freedom to move between places otherwise

open to their presence,” Williams, 535 F.3d at 76, or

and if it does, assessing whether the classification satisfies means-end

scrutiny).

For an ordinance that did burden the putative right to intrastate

travel, greater “focus on the source of the constitutional right” would be

required to determine an “appropriate standard of [means-end] review.”

Saenz, 526 U.S. at 500. Whether means-end scrutiny would apply at all

could depend on whether the right to intrastate travel derives from an

enumerated right. Compare Friedman, 487 U.S. at 65 (requiring

residency classifications to be closely related to the advancement of a

substantial state interest under the Privileges and Immunities Clause),

with Bruen, 142 S. Ct. at 2129 (holding that no form of means-end

scrutiny applies to the Second Amendment right). And if the right to

intrastate travel derives from an unenumerated right to liberty, as

recognized by the Fourteenth Amendment’s Due Process Clause, then

the level of means-end scrutiny would depend on whether that right is

fundamental. See Washington v. Glucksberg, 521 U.S. 702, 721, 728

(1997) (recognizing that strict scrutiny applies to fundamental liberty

interests protected by the Fourteenth Amendment’s Due Process Clause

and that rational-basis scrutiny applies to non-fundamental liberty

interests).

POTTER V. CITY OF LACEY 23

“interference with free ingress to and egress from certain

parts of a State,” Doe v. Miller, 405 F.3d 700, 713 (8th Cir.

2005). Various cases reflect this conception. 7

The RV Parking Ordinance does not prevent RV owners

from travelling “locally through public spaces and

roadways.” Johnson, 310 F.3d at 495; Lutz, 899 F.2d at 268.

It simply denies RV owners the ability to park their RV on

Lacey’s public spaces and roadways for longer than four

hours within any twenty-four period. See Lacey Mun. Code

§ 10.14.020(B)–(C). The RV Parking Ordinance preserves

RV owners’ freedom to travel along the very same public

spaces and roadways on which it forbids them from parking

for more than four hours. Thus, it does not burden the

putative right to free movement, nor anyone’s freedom to

sleep and live in these public spaces without a parked RV

(such as in a car, for example, whether large or small).

7

See Johnson, 310 F.3d at 502–05 (holding that an ordinance

establishing a drug exclusion zone that banned persons from a

geographic area for a period violates the right to intrastate travel); Lutz,

899 F.2d at 270 (holding that an ordinance banning cruising, or driving

across the same point on a public street more than once during a set

period, burdens the right to intrastate travel); King, 442 F.2d at 649

(holding that a resolution setting a durational municipal residency

requirement for public housing violates the right to intrastate travel); see

also, e.g., Hannemann, 673 F.3d at 756 (holding that a ban from school

property does not implicate the right to intrastate travel); Doe v. City of

Lafayette, 377 F.3d 757, 769–73 (7th Cir. 2004) (en banc) (holding that

a sex offender ban from public parks does not implicate the right to

intrastate travel); Ramos, 353 F.3d at 176–77 & n.3, 182–83 (holding

that an ordinance banning passage through public places and

establishments during certain hours violates the right to intrastate travel);

Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516, 521–22 & n.6

(6th Cir. 1997) (holding that a resolution banning through-truck traffic

on certain roads would violate the right to intrastate travel if such right

exists); Spencer v. Casavilla, 903 F.2d 171, 174–76 (2d Cir. 1990)

(recognizing the right to intrastate travel via bicycle).

24 POTTER V. CITY OF LACEY

Instead, the RV Parking Ordinance imposes normal

restrictions on parking (and not on travel)—the sort of

restrictions that likely exist in some form in most

municipalities throughout Washington, the Ninth Circuit,

and the nation.

B. Correlative Right

The RV Parking Ordinance does not violate a putative

right to intrastate travel correlative to the right to interstate

travel. A correlative right to intrastate travel could contain

three components: (i) the right of a resident of one part of a

state to enter and leave another part of the state; (ii) the right

to be treated as a welcome visitor rather than an unfriendly

alien when temporarily present in a city or municipality; and

(iii), for travelers who elect to become residents of a city or

municipality, the right to be treated like other residents of

that city or municipality. See Saenz, 526 U.S. at 500. The

first component is addressed by the right to free movement,

which, as discussed, the RV Parking Ordinance does not

burden. The latter two components focus on the equal

treatment of residents and nonresidents of cities and

municipalities.

Assessing the putative correlative right to intrastate

travel here, two questions arise. Does the RV Parking

Ordinance treat visitors to Lacey who choose to become

residents the same as it treats existing residents of Lacey?

And does the RV Parking Ordinance treat visitors to Lacey

as welcome visitors or as unfriendly aliens? The answers to

both questions reveal that the RV Parking Ordinance does

not infringe on the putative correlative right. First, the RV

Parking Ordinance applies to all persons within Lacey,

POTTER V. CITY OF LACEY 25

regardless of residency status. 8 And second, the RV Parking

Ordinance does not treat visiting RV owners as unfriendly

aliens rather than welcome visitors. That it prevents visitors

from parking their RVs in public spaces for more than four

hours at a time does not hinder their ability to travel to or

through, or visit, Lacey—for example, in their moving RV,

in an automobile, on bicycle, or by foot. That the RV

Parking Ordinance might deter some RV owners from

visiting Lacey is not enough to infringe on the putative right

to intrastate travel. Cf. Doe, 405 F.3d at 712 (“That the

statute may deter some out-of-state residents from traveling

to Iowa because the prospects for a convenient and

affordable residence are less promising than elsewhere does

not implicate a fundamental right recognized by the Court’s

right to travel jurisprudence.”). And the fact that the RV

Parking Ordinance prevents some people from permanently

living in their RVs parked in the City Hall parking lot does

not implicate, much less infringe on, any right to travel. 9

III. POTTER’S REMAINING CHALLENGES

The majority seeks to avoid deciding Potter’s remaining

three federal constitutional challenges to the RV Parking

Ordinance—that the ordinance violates the putative federal

constitutional right to intrastate travel, the Fourth

Amendment on its face, and the Eighth Amendment’s

prohibition on cruel and unusual punishments. In doing so,

the majority invokes the canon of constitutional avoidance:

“It is well-established that [we] should avoid adjudication of

8

The Ordinance excepts recreational (and commercial) “vehicles

owned by the city, its agents, or assigns.” Lacey Mun. Code

§ 10.14.020(D).

9

Potter parked his RV in the Lacey City Hall parking lot and lived

there continuously from May until October 8, 2019.

26 POTTER V. CITY OF LACEY

federal constitutional claims when alternative state grounds

are available even when the alternative ground is one of state

constitutional law.” Majority Op. 9 (alteration in original)

(quoting Cuviello v. City of Vallejo, 944 F.3d 816, 826 (9th

Cir. 2019) (ellipsis omitted)).

But there is a much simpler way to avoid adjudicating

the federal constitutional intrastate travel claim. We can

simply assume without deciding that there is a federal

constitutional right to intrastate travel and hold that the RV

Parking Ordinance does not violate it. 10 And Potter’s Fourth

and Eighth Amendment challenges border on the frivolous.

“Of course, as the Supreme Court has noted repeatedly when

formulating the canon of constitutional avoidance, the rule

applies when the constitutional issue at hand is a substantial

one.” Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir.

2001). Courts need not avoid deciding “a frivolous,

insubstantial, or patently incorrect constitutional argument.”

Id. at 1106 n.17.

A. Putative Federal Constitutional Right to Intrastate

Travel

As discussed above, the RV Parking Ordinance violates

neither conception of the putative right to intrastate travel

recognized and considered by some of our sister circuits: the

right to travel locally through public spaces and roadways,

10

See, e.g., NASA v. Nelson, 562 U.S. 134, 138 (2011) (assuming

without deciding that the Constitution protects a right to privacy in

avoiding disclosure of personal matters before determining that portions

of a government background check do not violate it); United States v.

Torres, 911 F.3d 1253, 1257 (9th Cir. 2019) (assuming without deciding

that the Second Amendment extends to unlawfully present aliens before

determining that the illegal-or-unlawful-alien-in-possession-of-a-

firearm statute does not violate it).

POTTER V. CITY OF LACEY 27

and a correlative right to the right to interstate travel. Neither

the Supreme Court nor our court has ever recognized such a

right. See Mem’l Hosp. v. Maricopa County, 415 U.S. 250,

255–56 (1974); Nunez by Nunez v. City of San Diego,

114 F.3d 935, 944 n.7 (9th Cir. 1997). 11 And we need not

determine the issue today.

11

If anything, the Supreme Court has cast doubt on the right to

intrastate travel. It has stated that “a purely intrastate restriction does not

implicate the right of interstate travel, even if it is applied intentionally

against travelers from other States, unless it is applied discriminatorily

against them.” Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263, 277 (1993). And while specifically declining to carve out a

standalone right to intrastate travel, the Court has acknowledged that

travel does not merely mean movement: “Even a bona fide residence

requirement would burden the right to travel, if travel meant merely

movement.” Mem’l Hosp., 415 U.S. at 255–56.

In an opinion lacking a majority, Justice Stevens suggested that

there is a liberty interest in “an individual’s decision to remain in a public

place of his choice.” City of Chicago v. Morales, 527 U.S. 41, 54 (1999)

(Stevens, J., joined by Souter & Ginsburg, JJ.). But that opinion arose

in a case that “did not require any fundamental rights analysis,” “merely

found that the government could not make some form of human activity

criminal without providing minimally adequate notice to individuals

concerning the type of activity that would violate the law.” 2 Ronald D.

Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance

and Procedure § 15.5 (May 2022 Update).

The Supreme Court’s much earlier analysis, which is more receptive

of such a right, has since been repudiated. The Lochner-era Court

observed that under the Articles of Confederation, state citizens

“possessed the fundamental right, inherent in citizens of all free

governments, peacefully to dwell within the limits of their respective

states, to move at will from place to place therein, and to have free

ingress thereto and egress therefrom.” United States v. Wheeler,

254 U.S. 281, 293 (1920), restricted to its facts and dicta discredited as

stated in United States v. Guest, 383 U.S. 745, 759 n.16 (1966). It also

observed that “the right of locomotion, the right to remove from one

28 POTTER V. CITY OF LACEY

place to another according to inclination, is an attribute of personal

liberty, and the right, ordinarily, of free transit from or through the

territory of any state is a right secured by the 14th Amendment and by

other provisions of the Constitution.” Williams v. Fears, 179 U.S. 270,

274 (1900). But the Court has since characterized this discussion as

limited to the right to interstate travel. See Mem’l Hosp., 415 U.S. at

280–81. And multiple circuits have noted the uncertainty “whether the

travel aspect of cases like Fears can be severed from the general spirit

of Lochner v. New York, 198 U.S. 45 (1905), now thoroughly discredited,

that was so prominent in the substantive due process analysis of that

period.” Doe, 405 F.3d at 712 (parallel citation omitted) (quoting Lutz,

899 F.2d at 266).

Walking, strolling, and wandering “are historically part of the

amenities of life as we have known them.” Papachristou v. City of

Jacksonville, 405 U.S. 156, 164 (1972). And under the Fourteenth

Amendment’s Due Process Clause, criminal regulations of these

behaviors—like loitering laws—must “provide the kind of notice that

will enable ordinary people to understand what conduct it prohibits” and

may not “authorize” or “encourage arbitrary and discriminatory

enforcement. Morales, 527 U.S. at 56. But the Supreme Court has

recognized that individuals do not have an unfettered right to speak or

assemble, much less park vehicles, where they please. In the First

Amendment context, “even in a public forum the government may

impose reasonable restrictions on the time, place, or manner of protected

speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). An

individual’s “choice of where and when” to speak “is not beyond the

Government’s regulatory reach,” as long as the time, place, or manner

restrictions satisfy doctrinal requirements. Snyder v. Phelps, 562 U.S.

443, 456 (2011). And the Court has relatedly observed that “the use of

public streets and sidewalks” is one thing “over which a municipality

must rightfully exercise a great deal of control in the interest of traffic

regulation and public safety.” Shuttlesworth v. City of Birmingham,

394 U.S. 147, 152 (1969). Even were the Court to recognize a right to

intrastate travel, it is thus inconceivable that it would find a benign

parking regulation, like the RV Parking Ordinance, to violate such right.

POTTER V. CITY OF LACEY 29

B. Fourth Amendment – Facial Challenge

Potter also argues that the RV Parking Ordinance

violates the Fourth Amendment. Because police never

seized Potter’s RV, he can raise only a facial Fourth

Amendment challenge to the ordinance. Cf. Columbia Basin

Apartment Ass’n v. City of Pasco, 268 F.3d 791, 797 (9th

Cir. 2001) (concluding that tenants had standing to bring a

pre-enforcement facial Fourth Amendment challenge to an

ordinance regulating sub-standard and dangerous rental

dwellings).

To succeed on a facial challenge, “a plaintiff must

establish that a law is unconstitutional in all of its

applications,” meaning those “applications of the statute in

which it actually authorizes or prohibits conduct.” City of

Los Angeles v. Patel, 576 U.S. 409, 418 (2015) (citation and

internal quotation marks omitted). This requirement

encompasses “applications in which it is the challenged law

alone that authorizes the government’s conduct.” Garcia v.

City of Los Angeles, 11 F.4th 1113, 1119 n.7 (9th Cir. 2021).

“Conduct that is independently authorized by a legal

provision or doctrine other than the challenged law is thus

not relevant to that law’s facial constitutionality.” Id. If

Potter were correct that the RV Parking Ordinance violated

the Fourth Amendment on its face, then garden-variety

parking ordinances across every municipality in the country

would, too. But that is not the law. “The authority of police

to seize and remove from the streets vehicles impeding

traffic or threatening public safety and convenience is

beyond challenge.” South Dakota v. Opperman, 428 U.S.

364, 369 (1976).

Under the RV Parking Ordinance, police may lawfully

impound RVs parked for too long on Lacey’s public streets

and parking lots. “The impoundment of an automobile is a

30 POTTER V. CITY OF LACEY

seizure within the meaning of the Fourth Amendment.”

Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir.

2005). Warrantless seizures are per se unreasonable under

the Fourth Amendment unless they satisfy one of “a few

specifically established and well-delineated exceptions.”

Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir.

2018) (citation omitted). One such exception is for

“community caretaking.” Miranda, 429 F.3d at 864

(quoting Opperman, 428 U.S. at 368). Under the community

caretaking exception, an impoundment must both satisfy the

terms of its authorizing state statute or local ordinance and

be reasonable under the Fourth Amendment. Id.

Courts assess whether a seizure is reasonable through

two factors geared toward determining whether

“impoundment was warranted”: (i) “the location of the

vehicle,” and (ii) “whether the vehicle was actually

‘impeding traffic or threatening public safety and

convenience’ on the streets.” Id. at 865 (quoting Opperman,

428 U.S. at 369). A vehicle threatens public convenience

merely by being parked overtime—it need not block traffic

or pose any acute danger. See Opperman, 428 U.S. at 365–

67. 12 A vehicle also threatens public convenience by “being

a target for vandalism or theft,” among other things.

Miranda, 429 F.3d at 864. Here, the RV Parking Ordinance

authorizes the seizure of RVs that are parked overtime or are

a target for vandalism or theft. Because there is at least one

12

See also United States v. Trujillo, 993 F.3d 859, 865 (10th Cir.

2021) (“The impounded automobile in Opperman was in a lawful

parking spot. Perhaps between 2:00 a.m. and 6:00 a.m. it was blocking

street-maintenance work, but when it was impounded the sin was parking

overtime. A more recently arrived vehicle could have lawfully parked

there. It was not blocking the flow of traffic.”).

POTTER V. CITY OF LACEY 31

constitutional application of the Ordinance, it is facially

constitutional under the Fourth Amendment.

C. Eighth Amendment – Cruel and Unusual Punishment

Potter’s final argument is that the RV Parking Ordinance

imposes a cruel and unusual punishment on RV owners in

violation of the Eighth Amendment. But “[t]he Eighth

Amendment’s prohibition of ‘cruel and unusual

punishments’ applies only ‘after conviction and sentence.’”

Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001)

(quoting Graham v. Connor, 490 U.S. 386, 393 & n.6

(1989)). As a corollary, the Eighth Amendment’s

prohibition of cruel and unusual punishments “prohibits the

imposition of criminal penalties for sitting, sleeping, or lying

outside on public property for homeless individuals who

cannot obtain shelter.” Martin v. City of Boise, 920 F.3d

584, 616 (9th Cir. 2019). Here, the RV Parking Ordinance

applies to RV owners outside the criminal process entirely.

Compare Lacey Mun. Code § 10.14.040 (authorizing only

the imposition of a monetary penalty and impoundment of

unlawfully parked RVs without using the words, “criminal,”

“misdemeanor,” “felony,” or similar), with, e.g., id.

§ 9.28.110 (defining “vehicle prowling” as a “gross

misdemeanor” committed by entering or remaining

unlawfully in a vehicle “with intent to commit a crime

against a person or property therein”). Potter’s Eighth

Amendment argument thus fails. 13

13

Potter also cites Pimental v. City of Los Angeles, 974 F.3d 917

(9th Cir. 2020), in which we held that the Eighth Amendment’s

Excessive Fines Clause applies to parking fines. Potter has not argued

that the potential $35 fine for violating the RV Parking Ordinance is

excessive. See Lacey Mun. Code § 10.14.040. But even if he made this

argument, he would be incorrect. See Pimental, 974 F.3d at 925

32 POTTER V. CITY OF LACEY

***

We need not and should not burden the Washington

Supreme Court with unnecessarily answering questions of

state law, especially when this case does not meet the

requirements of Washington’s certification statute. Nor

should we invoke the doctrine of constitutional avoidance

here—Potter’s constitutional claims are so insubstantial that

we should reject them out of hand. Thus, I respectfully

dissent.

(“Considering the [United States v. Bajakajian, 524 U.S. 321 (1998)]

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.”).