Janet Bell v. City of Boise

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANET F. BELL; BRIAN S. CARSON ; No. 11-35674

ROBERT MARTIN ; LAWRENCE LEE

SMITH ; ROBERT ANDERSON ; PAMELA D.C. No.

S. HAWKES; JAMES M. GODFREY ; 1:09-cv-00540-

BASIL E. HUMPHREY , REB

Plaintiffs-Appellants,

v. OPINION

CITY OF BOISE; BOISE POLICE

DEPARTMENT ; MICHAEL

MASTERSON , in his official capacity

as Chief of Police,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho

Ronald E. Bush, Magistrate Judge, Presiding

Argued and Submitted

August 7, 2012—Seattle, Washington

Filed March 7, 2013

2 BELL V . CITY OF BOISE

Before: Susan H. Black,* Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Black

SUMMARY**

Civil Rights

The panel reversed the district court’s summary judgment

and remanded in this 42 U.S.C. § 1983 action in which

plaintiffs, who either are or have been homeless, alleged that

police officers enforced two local camping and sleeping

ordinances against them, in violation of the Eighth

Amendment.

Plaintiffs contended that defendants’ policy, custom, and

practice of enforcing these ordinances had the effect of

criminalizing homelessness and constituted cruel and unusual

punishment. The panel reversed the dismissal of plaintiffs’

claims for retrospective relief, determining that those claims

were not barred by the Rooker-Feldman doctrine. The panel

held that although plaintiffs sought relief designed to remedy

injuries suffered from a state court judgment, they did not

allege that the state court committed legal error, nor did they

seek relief from the state court judgment itself. Rather,

*

The Honorable Susan H. Black, United States Senior Circuit Judge for

the Eleventh Circuit, sitting by designation.

**

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

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

BELL V . CITY OF BOISE 3

plaintiffs asserted as a legal wrong an allegedly illegal act by

an adverse party: the City’s allegedly unconstitutional

enforcement of the ordinances.

The panel also reversed the dismissal of plaintiffs’ claims

for prospective relief because those claims had not been

mooted by defendants’ voluntary conduct. In reversing, the

panel did not reach the merits of plaintiffs’ Eighth

Amendment claims. Rather, the panel held that jurisdiction

existed as to plaintiffs’ Eighth Amendment claims and

remanded for a consideration of the merits in the first

instance.

COUNSEL

Howard A. Belodoff, Idaho Legal Aid Services, Inc., Boise,

Idaho, for Plaintiffs-Appellants.

Scott B. Muir, Assistant City Attorney, Boise City Attorney’s

Office, Boise, Idaho, for Defendants-Appellees.

OPINION

BLACK, Circuit Judge:

Plaintiffs appeal the court’s1 order granting summary

judgment to Defendants City of Boise, Boise Police

Department, and Michael Masterson in his official capacity

1

The parties consented to proceeding before a magistrate judge in

accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of

Civil Procedure 73.

4 BELL V . CITY OF BOISE

as Chief of Police. Plaintiffs’ amended complaint, brought

pursuant to 42 U.S.C. § 1983, alleged Defendants enforced

two local ordinances in violation of the Eighth Amendment

to the Constitution. The court held the Rooker-Feldman2

doctrine deprived it of subject matter jurisdiction over

Plaintiffs’ claims for retrospective relief. The court also

found Plaintiffs’ claims for prospective injunctive and

declaratory relief “largely moot” because the City of Boise

amended one ordinance and the Chief of Police issued an

internal policy regarding the enforcement of both ordinances.

We reverse the dismissal of Plaintiffs’ claims for

retrospective relief because those claims are not barred by the

Rooker-Feldman doctrine. We also reverse the dismissal of

Plaintiffs’ claims for prospective relief because those claims

have not been mooted by Defendants’ voluntary conduct. In

reversing, we do not reach the merits of Plaintiffs’ Eighth

Amendment challenges. Rather, we hold that jurisdiction

exists as to Plaintiffs’ Eighth Amendment claims and remand

for a consideration of the merits in the first instance.

FACTUAL AND PROCEDURAL HISTORY

Plaintiffs Robert Anderson, Janet Bell, Brian Carson,

Pamela Hawkes, Basil Humphrey, Robert Martin, and

Lawrence Lee Smith are individuals who either are or have

been homeless in Boise. Plaintiffs have all been cited or

2

See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303

(1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149 (1923).

BELL V . CITY OF BOISE 5

arrested for violating one or both of the local ordinances at

issue on appeal.3

Between 2006 and 2009, Plaintiffs Anderson, Bell,

Hawkes, Humphrey, Martin, and Smith were cited or arrested

for violating Boise City Code § 9-10-02 (1993) (the Camping

Ordinance). During that period, the Camping Ordinance

provided:

It shall be unlawful for any person to use

any of the streets, sidewalks, parks or public

places as a camping place at any time . . .

provided that this section shall not prohibit the

operation of a sidewalk café pursuant to a

permit issued by the City Clerk.

Boise City Code § 9-10-02 (1993). Violation of the Camping

Ordinance was (and is) a misdemeanor. Boise City Code § 9-

10-20.4

Between 2007 and 2009, Plaintiffs Carson, Hawkes, and

Martin were cited for violating Boise City Code § 6-01-05(A)

3

On the record before us, there is nothing to support the allegation that

Plaintiff James Godfrey was cited or arrested for a violation of the local

ordinances at issue on appeal. Thus, any injury suffered by Godfrey

cannot be linked to the challenged actions of Defendants, and Godfrey

therefore lacks standing to seek relief. See Davis v. Fed. Election

Comm’n, 554 U.S. 724, 733, 128 S. Ct. 2759, 2768 (2008) (“To qualify

for standing, a claimant must present an injury that is concrete,

particularized, and actual or imminent; fairly traceable to the defendant’s

challenged behavior; and likely to be redressed by a favorable ruling.”).

Accordingly, we affirm the dismissal of all claims as to Godfrey.

4

The Boise City Code is available at: http://cityclerk.cityofboise.org/

city-code/.

6 BELL V . CITY OF BOISE

(the Sleeping Ordinance). The Sleeping Ordinance

criminalizes as a misdemeanor “disorderly conduct,” which

includes “[o]ccupying, lodging or sleeping in any building,

structure or place, whether public or private, or in any motor

vehicle without the permission of the owner or person entitled

to possession or in control thereof.” Boise City Code § 6-01-

05(A).

On June 28, 2010, Plaintiffs filed an amended complaint

challenging the Camping and Sleeping Ordinances

(collectively, the Ordinances) and seeking relief pursuant to

42 U.S.C. § 1983. Plaintiffs’ amended complaint alleged that

Defendants used the Ordinances “to cite and arrest

individuals who cannot avoid violating these laws because

they are homeless.” Plaintiffs contended that Defendants’

policy, custom, and practice in enforcing these ordinances

“has the effect of ‘criminalizing’ homelessness” and

constitutes “cruel and unusual punishment in violation of

Plaintiffs’ well established rights under the Eighth

Amendment.” Plaintiffs sought declaratory and injunctive

relief to enjoin enforcement of the Ordinances. Plaintiffs also

sought an order (1) “compelling the City of Boise authorities

to seek expungement of the records of any homeless

individuals unlawfully cited or arrested” under the

Ordinances, and (2) requiring the reimbursement of any

criminal fines or costs of incarceration paid by homeless

individuals as a result of unlawful citations and arrests.

Plaintiffs further sought an “[a]ward of damages according to

proof.”

Central to Plaintiffs’ claims is the alleged unavailability

of overnight space in Boise’s homeless shelters. Three

primary homeless shelters operate in Boise. Boise Rescue

Mission (BRM) operates two of the shelters—City Light for

BELL V . CITY OF BOISE 7

Women and Children (City Light) and River of Life. During

the summer, both BRM shelters restrict the length of time a

person may stay without participating in certain programs.

City Light provides shelter for women and children, while

River of Life provides shelter for men. Interfaith Sanctuary

(Sanctuary) operates the third shelter. Sanctuary cannot

guarantee shelter for every person who requests it, and

frequently turns away people when full. However, Sanctuary

employs a reservation system for those who have stayed the

prior evening. People who stayed the previous night are

guaranteed the same beds, provided they “show up by 9:00

pm or make special arrangements.” Otherwise, the beds are

given to those on the wait list. Sanctuary does not appear to

restrict a person’s length of stay, given that Plaintiff

Anderson spent three years living at Sanctuary.

On November 10, 2009, after this litigation had

commenced,5 the City amended the Camping Ordinance by

adding a definition of “camp” and “camping”:

The term “camp” or “camping” shall mean the

use of public property as a temporary or

permanent place of dwelling, lodging, or

residence, or as a living accommodation at

anytime between sunset and sunrise, or as a

sojourn. Indicia of camping may include, but

are not limited to, storage of personal

belongings, using tents or other temporary

structures for sleeping or storage of personal

belongings, carrying on cooking activities or

making any fire in an unauthorized area, or

any of these activities in combination with

5

Plaintiffs’ original complaint was filed on October 22, 2009.

8 BELL V . CITY OF BOISE

one another or in combination with either

sleeping or making preparations to sleep

(including the laying down of bedding for the

purpose of sleeping).

Boise City Code § 9-10-02 (2009).

No changes were made to the Sleeping Ordinance.

However, the Boise Police Department’s Chief of Police

issued a “Special Order,” with instructions to post the order

in the 2009 Policy Manual accompanied by a handwritten

note that the policy regarding enforcement of the Ordinances

“is modified by Special Order 10-03, effective at 0001 hours

on January 1, 2010.” The Special Order is not referenced or

incorporated into the Ordinances. Although the record is

vague as to exactly how the Special Order was created, it is

clear from the record that the Chief of Police has the

exclusive authority to establish policy for the Boise Police

Department.

The Special Order prohibits officers from enforcing the

Camping and Sleeping Ordinances when a person is on public

property and there is no available overnight shelter. The

Special Order defines “available overnight shelter” as “a

public or private shelter, with an available overnight space,

open to an individual or family unit experiencing

homelessness at no charge. To qualify as available, the space

must take into account sex, marital and familial status, and

disabilities.” The Special Order further provides that, if an

individual cannot use available space because of a disability

or a shelter’s length-of-stay restrictions, the space should not

be considered available. The space will be considered

available if the individual cannot use the space “due to

BELL V . CITY OF BOISE 9

voluntary actions such as intoxication, drug use or unruly

behavior.”

All three homeless shelters agreed to report voluntarily to

Boise State University Dispatch on evenings they determined

their shelters were “full.”6 Boise State University agreed to

then send an e-mail to the Boise Police Department advising

officers that a shelter had reported being full. No written

agreement exists between Defendants and the shelters.

After extensive discovery, the amendment of the Camping

Ordinance, and the adoption of the Special Order, the court

granted Defendants’ motion for summary judgment. The

court, citing Jones v. City of Los Angeles, 444 F.3d 1118 (9th

Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007) (order),

recognized that a legal basis existed for Plaintiffs’ Eighth

Amendment challenge to the Ordinances.7 The court then

concluded Plaintiffs’ Eighth Amendment claims for

prospective relief were “mooted in part and otherwise fail as

a matter of law.”

In analyzing Plaintiffs’ Eighth Amendment claims for

prospective relief, the court distinguished between daytime

6

T he Special Order does not define “full” or “full space capacity”;

rather, these terms are used on the “Overnight Shelter Capacity Advisory

Protocol” form.

7

The court noted that Jones was vacated as a result of a settlement

agreement and thus not binding. However, it concluded the decision

“shed light on the issue and how the Ninth Circuit might approach such

challenges in the future.” As stated previously, we do not reach the merits

of Plaintiffs’ Eighth Amendment challenges to the enforcement of the

Ordinances. Likewise, we do not address the propriety of the Jones

analysis.

10 BELL V . CITY OF BOISE

enforcement of the Sleeping Ordinance and nighttime

enforcement of the Sleeping and Camping Ordinances. With

respect to the daytime enforcement of the Sleeping

Ordinance, it determined “the undisputed facts reflect that the

homeless may sleep in the parks during the day (whether or

not shelter space is available).” Accordingly, the court

concluded the daytime aspect of Plaintiffs’ Eighth

Amendment claims failed as a matter of law.

With respect to nighttime enforcement of both

Ordinances, the court held that Plaintiffs’ Eighth Amendment

claims for prospective relief were mooted by the adoption of

the Special Order. The court reasoned that the adoption of

the Special Order allowed the homeless to sleep in parks at

night if shelter space was unavailable, which made it “no

longer reasonable to expect that the Boise Police Department

will enforce the . . . Ordinances against homeless people at

night when shelter space is unavailable.” Accordingly, the

court found that adoption of the Special Order mooted the

nighttime enforcement aspect of Plaintiffs’ Eighth

Amendment claims for prospective relief. The court noted

that its “decision does not bar Plaintiffs from bringing a

future action contending that Defendants are not following

the policy set forth in the Special Order.”

The court also concluded that the Rooker-Feldman

doctrine barred consideration of Plaintiffs’ claims for

retrospective relief, including Plaintiffs’ request for an order

compelling expungement of Plaintiffs’ criminal records and

Plaintiffs’ request for damages. The court reasoned that

because Plaintiffs’ requested relief was “designed to

compensate Plaintiffs for the injuries occasioned by the state-

court judgments,” their retrospective claims “would serve as

an end-run around the state court appellate process,” and

BELL V . CITY OF BOISE 11

“serve as a de facto appeal from the state court.” Further,

Plaintiffs’ claims would have required the court “to review

and reject [the] judgment in each Plaintiff’s [criminal] case.”

Thus, the court found Rooker-Feldman prohibited

examination of the merits of Plaintiffs’ retrospective claims.

The court granted summary judgment to Defendants on

the remainder of Plaintiffs’ claims and dismissed the

amended complaint. This timely appeal followed. Plaintiffs

do not appeal the court’s decision that their Eighth

Amendment claims concerning daytime enforcement of the

Sleeping Ordinance failed as a matter of law. See Tsao v.

Desert Palace, Inc., 698 F.3d 1128, 1137 n.13 (9th Cir. 2012)

(noting that an appellant waives appeal of an issue not raised

in an opening brief).8 Rather, Plaintiffs’ appeal focuses on

the court’s findings with regard to mootness and the Rooker-

Feldman doctrine.

STANDARD OF REVIEW

We review an application of the Rooker-Feldman doctrine

de novo. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th

Cir. 2010). We also review de novo questions of Article III

justiciability, including mootness. Sierra Forest Legacy v.

Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). Factual

determinations underlying the district court’s decision are

8

The court also held that Plaintiffs’ right to travel claims failed as a

matter of law, the Camping Ordinance was not unconstitutionally vague,

the overbreadth doctrine did not apply outside the First Amendment

context, and the Idaho constitutional claims failed for the same reasons as

their federal counterparts. Plaintiffs have waived appeal of these issues

by failing to challenge these rulings in their opening brief. See Tsao,

698 F.3d at 1137 n.13.

12 BELL V . CITY OF BOISE

reviewed for clear error. Wolfson v. Brammer, 616 F.3d 1045,

1053 (9th Cir. 2010).

DISCUSSION

We first discuss the court’s dismissal of Plaintiffs’ Eighth

Amendment claims for retrospective relief under the Rooker-

Feldman doctrine. We determine the Rooker-Feldman

doctrine is inapplicable because Plaintiffs’ suit is not a

forbidden de facto appeal. We then discuss the court’s

dismissal of Plaintiffs’ Eighth Amendment claims for

prospective relief on mootness grounds. We conclude

Defendants have failed to meet their heavy burden of

demonstrating that the Special Order eliminates all reasonable

expectations of recurrence of the allegedly unconstitutional

enforcement of the Ordinances. Because we hold that

jurisdiction exists over Plaintiffs’ Eighth Amendment claims

for retrospective and prospective relief, we remand for a

consideration of the merits of these claims.9

A. Rooker-Feldman

The court dismissed Plaintiffs’ claims for retrospective

relief under the Rooker-Feldman doctrine after finding those

“requests for relief are designed to compensate Plaintiffs for

the injuries occasioned by the state-court judgments.” On

9

As discussed earlier, the court concluded Plaintiffs’ Eighth

Amendment claims for prospective relief concerning daytime enforcement

of the Sleeping Ordinance failed as a matter of law. Plaintiffs failed to

appeal this issue, thus, on remand, the court need only consider the merits

of Plaintiffs’ Eighth Amendment claims concerning nighttime

enforcement of the Ordinances. Our holding is limited to jurisdiction;

nothing in this opinion should be construed as passing judgment on the

merits of Plaintiffs’ claims.

BELL V . CITY OF BOISE 13

appeal, Plaintiffs contend the court incorrectly applied the

Rooker-Feldman doctrine. We agree.

The Rooker-Feldman doctrine forbids a losing party in

state court from filing suit in federal district court

complaining of an injury caused by a state court judgment,

and seeking federal court review and rejection of that

judgment. Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289,

1297 (2011). To determine whether the Rooker-Feldman bar

is applicable, a district court first must determine whether the

action contains a forbidden de facto appeal of a state court

decision. Noel v. Hall, 341 F.3d 1148, 1158 (9th Cir. 2003).10

A de facto appeal exists when “a federal plaintiff asserts as a

legal wrong an allegedly erroneous decision by a state court,

and seeks relief from a state court judgment based on that

decision.” Id. at 1164. In contrast, if “a federal plaintiff

asserts as a legal wrong an allegedly illegal act or omission

by an adverse party, Rooker-Feldman does not bar

jurisdiction.” Id. Thus, even if a plaintiff seeks relief from

a state court judgment, such a suit is a forbidden de facto

appeal only if the plaintiff also alleges a legal error by the

state court. Maldonado v. Harris, 370 F.3d 945, 950 (9th Cir.

2004); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th

Cir. 2004) (“[A] plaintiff must seek not only to set aside a

state court judgment; he or she must also allege a legal error

by the state court as the basis for that relief.”).

If “a federal plaintiff seeks to bring a forbidden de facto

appeal, . . . that federal plaintiff may not seek to litigate an

issue that is ‘inextricably intertwined’ with the state court

10

The Supreme Court approved of Noel’s approach to Rooker-Feldman

in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293,

125 S. Ct. 1517, 1527 (2005).

14 BELL V . CITY OF BOISE

judicial decision from which the forbidden de facto appeal is

brought.” Noel, 341 F.3d at 1158. The “inextricably

intertwined” language from Feldman is not a test to

determine whether a claim is a de facto appeal, but is rather

a second and distinct step in the Rooker-Feldman analysis.

See id. Should the action not contain a forbidden de facto

appeal, the Rooker-Feldman inquiry ends. See Manufactured

Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1030

(9th Cir. 2005).

The court erred by dismissing Plaintiffs’ claims for

retrospective relief under the Rooker-Feldman doctrine.

Although Plaintiffs sought relief designed to remedy injuries

suffered from a state court judgment, they did not allege

before the court that the state court committed legal error, nor

did they seek relief from the state court judgment itself.

Rather, Plaintiffs assert “as a legal wrong an allegedly illegal

act . . . by an adverse party”—the City’s allegedly

unconstitutional enforcement of the Ordinances. Noel,

341 F.3d at 1164. Without a direct challenge to a state

court’s factual or legal conclusion, Plaintiffs’ suit is not a

forbidden de facto appeal, and Rooker-Feldman is

inapplicable. See Manufactured Home Cmtys., 420 F.3d at

1030 (“MHC’s complaint does not directly challenge a state

court’s factual or legal conclusion. MHC’s complaint to the

district court is, therefore, not a forbidden appeal under

Rooker-Feldman.”); see also Maldonado, 370 F.3d at 950;

Kougasian, 359 F.3d at 1140. We therefore reverse the

dismissal of Plaintiffs’ claims for retrospective relief.11

11

On appeal, neither party argues whether preclusion principles apply.

See H enrichs v. Valley View Dev., 474 F.3d 609, 613 (9th Cir. 2007)

(“Rooker-Feldman does not override or supplant issue and claim

preclusion doctrines.”). Preclusion principles are not jurisdictional.

BELL V . CITY OF BOISE 15

B. Mootness

The court dismissed Plaintiffs’ claims for prospective

relief as moot after concluding the Special Order was

“sufficient to foreclose any reasonable expectation that the

alleged illegal action will recur.” Specifically, the court

found it was no longer reasonable to expect the Ordinances

would be enforced against the homeless at night when shelter

space was unavailable. On appeal, Plaintiffs argue the court

failed to apply the stringent standard for evaluating whether

a defendant’s voluntary cessation of a challenged practice

renders a case moot. Defendants contend Plaintiffs’ claims

have been mooted by the Special Order.12

Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 872 (9th Cir. 2005). W e

therefore decline to consider their application to this case.

The parties also fail to address the application of Heck v. Humphrey’s

“favorable-termination” requirement. See 512 U.S. 477, 486–87, 114

S. Ct. 2364, 2372 (1994) (“W e hold that, in order to recover damages for

allegedly unconstitutional conviction or imprisonment, or for other harm

caused by actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court’s issuance of a writ of habeas

corpus, 28 U.S.C. § 2254.” (footnote omitted)). The court may address

this issue on remand to determine whether Plaintiffs have raised a

“cognizable” § 1983 claim. Heck, 512 U.S. at 483, 114 S. Ct. at 2370.

12

Defendants also contend Plaintiffs’ claims have been mooted by the

amended definition of “camping” in the Camping Ordinance. We

disagree. Although the amended provision provides additional guidance

for the public and police, and was subject to a more rigorous

implementation process, it does not, standing alone, moot Plaintiffs’

request for prospective relief under the Eighth Amendment. Plaintiffs’

request for prospective relief under the Eighth Amendment rests on an

16 BELL V . CITY OF BOISE

“The voluntary cessation of challenged conduct does not

ordinarily render a case moot because a dismissal for

mootness would permit a resumption of the challenged

conduct as soon as the case is dismissed.” Knox v. Serv.

Emps. Int’l Union, Local 1000, __ U.S. __, 132 S. Ct. 2277,

2287 (2012); see also Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693,

708 (2000) (“It is well settled that a defendant’s voluntary

cessation of a challenged practice does not deprive a federal

court of its power to determine the legality of the practice.”

(internal quotation marks omitted)). The standard for

determining whether a defendant’s voluntary conduct moots

a case is “stringent: A case might become moot if subsequent

events made it absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.” Friends

of the Earth, 528 U.S. at 189, 120 S. Ct. at 708 (internal

quotation marks omitted); see also White v. Lee, 227 F.3d

1214, 1242–44 (9th Cir. 2000). The “heavy burden” lies with

the party asserting mootness to demonstrate that, after a

voluntary cessation, “the challenged conduct cannot

reasonably be expected to start up again.” Friends of the

Earth, 528 U.S. at 189, 120 S. Ct. at 708 (internal quotation

marks omitted). This heavy burden applies to a government

allegation that enforcement of the Camping Ordinance effectively

criminalized their status as homeless individuals. Mere clarification of the

Camping Ordinance does not address the central concerns of Plaintiffs’

Eighth Amendment claims. Thus, Defendants have failed to carry their

heavy burden of demonstrating that “the challenged conduct cannot

reasonably be expected to start up again.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708

(2000) (internal quotation marks omitted).

BELL V . CITY OF BOISE 17

entity that voluntarily ceases allegedly illegal conduct.

White, 227 F.3d at 1243–44.13

The court’s mootness analysis relied upon our decision in

Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir.

1994). Noatak, however, involved Alaska’s repeal of a

challenged statute and was “not a case where a defendant

voluntarily ceases challenged action in response to a lawsuit.”

Id. at 1508, 1511. Noatak recognized the general principle

that, “if a challenged law is repealed or expires, the case

becomes moot.” Id. at 1510.

Noatak’s general principle narrowing the voluntary

cessation exception is limited to “state legislative enactments

that otherwise moot a controversy.” See Chem. Producers &

Distribs. Ass’n v. Helliker, 463 F.3d 871, 878 (9th Cir. 2006)

(noting the voluntary cessation exception has been narrowed

in these circumstances). For state legislative enactments,

“‘[a] statutory change . . . is usually enough to render a case

moot, even if the legislature possesses the power to reenact

the statute after the lawsuit is dismissed.’” Id. (quoting

Noatak, 38 F.3d at 1510). By contrast, however, repeal or

amendment of an ordinance by a local government or agency

does not necessarily “deprive a federal court of its power to

determine the legality of the practice.” Id. (internal quotation

marks omitted).

We are not presented with a change to a state legislative

enactment, nor are we presented with the repeal of the

13

Although we presume a government entity is acting in good faith

when it changes its policy, see Am. Cargo Transp., Inc. v. United States,

625 F.3d 1176, 1180 (9th Cir. 2010), the government entity still must meet

its heavy burden of proof, White, 227 F.3d at 1244.

18 BELL V . CITY OF BOISE

challenged Ordinances. Defendants rely on the adoption of

the Special Order, which is not analogous to either a state or

local legislative enactment. Generally speaking, a statute is

“[a] law passed by a legislative body.” Black’s Law

Dictionary 1542 (9th ed. 2009). Idaho’s statutes are codified

in the Idaho Code, and the legislative power to enact the laws

of the State is vested in a senate and house of representatives.

Idaho Const. art. III § 1. The Idaho Constitution provides that

“no bill shall become a law without the concurrence of a

majority of the members present,” id. § 15, and the people of

Idaho reserve “the power to approve or reject at the polls any

act or measure passed by the legislature,” id. § 1.

Similarly, the City of Boise defines ordinances as “formal

legislative acts of the Council [to be] used whenever the

Council intends to pass a regulatory measure, especially when

it provides a penalty for a violation.” City of Boise,

http://cityclerk.cityofboise.org/city-code/ (last visited Dec.

18, 2012). The procedures for adopting an ordinance are

outlined in the Idaho Code and “must be strictly followed.”

Id. A majority vote of the city council is required to pass or

adopt an ordinance, and the subject of the ordinance must be

clearly expressed in the title. Idaho Code. § 50-902. The

Idaho Code also imposes certain publication requirements

before an ordinance may take effect. Idaho Code §§ 50-901,

50-901A.

The Special Order is not governed by any analogous

procedures. Although policies in the Boise Police

Department Policy Manual may be created by a “policy

committee,” the Chief of Police has the ultimate, and

exclusive, authority to “establish policy and to direct all

actions of the Department and its employees.” See Masterson

Dep. 27: 1–4, 28: 6-8, Aug. 12, 2010. The Special Order was

BELL V . CITY OF BOISE 19

issued by the Boise Police Department’s Chief of Police with

instructions to post the order in the 2009 Policy Manual.

Employees were then instructed to include a handwritten note

that the policy regarding enforcement of the Ordinances “is

modified by Special Order 10-03, effective at 0001 hours on

January 1, 2010.” The record is vague as to exactly how the

Special Order was created. We do not know what function,

if any, the policy committee served in creating the Special

Order. What we do know is that the Chief of Police, and only

the Chief of Police, has the “authority to establish policy for

the police department.” Masterson Dep. 28: 10–11.

The Special Order is an internal policy that purports to

curb the discretion of officers to enforce the Ordinances when

“[t]here is no available overnight shelter.” It is not a formal

written enactment of a legislative body and thus was not

subject to any procedures that would typically accompany the

enactment of a law. Nor is the Special Order referenced or

incorporated in the Ordinances.14 Even assuming Defendants

have no intention to alter or abandon the Special Order, the

ease with which the Chief of Police could do so counsels

against a finding of mootness, as “a case is not easily mooted

where the government is otherwise unconstrained should it

later desire to reenact the provision.” Coral Constr. Co. v.

King Cnty., 941 F.2d 910, 928 (9th Cir. 1991).

14

Nothing in this opinion should be construed as holding that merely

referencing or incorporating the Special Order in the Ordinances would

have rendered this case moot. As noted previously, the “near categorical

rule of mootness” recognized in Noatak applies in cases of state statutory

change, while “local government or administrative agency repeal or

amendment” does not necessarily “deprive a federal court of its power to

determine the legality of the practice.” Chem. Producers, 463 F.3d at 878

(internal quotation marks omitted).

20 BELL V . CITY OF BOISE

The Special Order is also distinguishable from the

“entrenched” and “permanent” policy issued in White.

227 F.3d at 1243. In White, the Department of Housing and

Urban Development (HUD) adopted a new policy in response

to the plaintiffs’ allegations that HUD investigators violated

their First Amendment rights. Id. at 1225. The new policy

was designed to protect the First Amendment rights of parties

subject to HUD investigations, and the policy was circulated

in a memorandum, announced by press release, and

incorporated into a field handbook. Id. at 1242. We found

the policy change to be “permanent” based on the broad

scope and unequivocal tone of the new policy. Id. at 1243.

We also noted the new policy, which had been renewed on an

annual basis and in place for more than five years, was “fully

supportive of First Amendment rights,” “addresse[d] all of

the objectionable measures that HUD officials took against

the plaintiffs,” and “even confesse[d] that [plaintiffs’] case

was the catalyst for the agency’s adoption of the new policy.”

Id. & n.25. Based on these facts, we held HUD had met its

heavy burden of proving the challenged conduct could not

reasonably be expected to recur, such that the plaintiffs’

claims were mooted by the new policy. Id. at 1244.

Although White establishes that a policy change may be

sufficient to meet the stringent standard for proving a case

has been mooted by a defendant’s voluntary conduct, id. at

1243–44, the Special Order lacks the assurances present in

White. Significantly, in White, the new policy addressed “all

of the objectionable measures that HUD officials took against

the plaintiffs.” Id. at 1243 (emphasis added). In contrast, the

Special Order fails to fully address Plaintiffs’ allegations in

their amended complaint with regard to Defendants’

nighttime enforcement of the Ordinances. Moreover, as

discussed above, the authority to establish policy for the

BELL V . CITY OF BOISE 21

Boise Police Department is vested entirely in the Chief of

Police, such that the new policy regarding enforcement of the

Ordinances could be easily abandoned or altered in the future.

Coral Constr. Co., 941 F.2d at 928. Simply put, Defendants

have failed to establish with the clarity present in White that

the new policy is the kind of permanent change that proves

voluntary cessation.

On the record before us, we conclude the implementation

of the Special Order is insufficient to moot Plaintiffs’ Eighth

Amendment claims for prospective relief.15 Defendants have

failed to meet their heavy burden to make it “absolutely clear

that the allegedly wrongful behavior”—the alleged

unconstitutional enforcement of the Ordinances—“could not

reasonably be expected to recur.” Friends of the Earth,

528 U.S. at 189, 120 S. Ct. at 708 (internal quotation marks

omitted); see also DiLoreto v. Downey Unified Sch. Dist. Bd.

of Educ., 196 F.3d 958, 963 n.1 (9th Cir. 1999) (adopting the

reasoning of Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir.

1998), which concluded a changed policy was insufficient to

moot a controversy because the policy, adopted after the

commencement of the suit, was “'not implemented by statute

15

Defendants argue Plaintiffs are no longer homeless and therefore lack

standing to seek injunctive or declaratory relief. Defendants are not

entitled to summary judgment on this ground. To defeat a motion for

summary judgment, Plaintiffs, as the party asserting federal court

jurisdiction, “need not establish that they in fact have standing, but only

that there is a genuine issue of material fact as to the standing elements.”

Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir.

2002). Viewing the evidence in the light most favorable to the

nonmovant, Plaintiffs have met this standard for purposes of their claims

for prospective relief. On remand, the court may conduct further

discovery on the standing issue for purposes of Plaintiffs’ injunctive and

declaratory relief claims.

22 BELL V . CITY OF BOISE

or regulation and could be changed again'”); Gluth v. Kangas,

951 F.2d 1504, 1507 (9th Cir. 1991) (concluding a vague

policy enacted during litigation did “not deprive the court of

a justiciable controversy”).

CONCLUSION

We reverse the court’s dismissal of Plaintiffs’ claims for

retrospective relief because those claims are not barred by the

Rooker-Feldman doctrine. Further, we conclude jurisdiction

exists as to Plaintiffs’ claims for prospective relief regarding

the nighttime enforcement of the Ordinances. We remand the

case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.