Janet Bell, et al v. City of Boise, et al

Filing

FILED OPINION (SUSAN H. BLACK, SUSAN P. GRABER and JOHNNIE B. RAWLINSON) REVERSED AND REMANDED. Judge: SHB Authoring, FILED AND ENTERED JUDGMENT. [8540576]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANET F. BELL; BRIAN S. CARSON ;
ROBERT MARTIN ; LAWRENCE LEE
SMITH ; ROBERT ANDERSON ; PAMELA
S. HAWKES; JAMES M. GODFREY ;
BASIL E. HUMPHREY ,
Plaintiffs-Appellants,

No. 11-35674
D.C. No.
1:09-cv-00540REB

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

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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.

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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.

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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).

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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 § 910-20.4
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/.

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(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 § 6-0105(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

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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.

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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

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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.

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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 statecourt judgments,” their retrospective claims “would serve as
an end-run around the state court appellate process,” and

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“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 RookerFeldman 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.

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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 RookerFeldman 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.

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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).

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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.

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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

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“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).

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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.

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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

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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).

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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

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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.

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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.