920 F.3d 584

OWENS, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the doctrine of Heck v. Humphrey , 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), bars the plaintiffs' 42 U.S.C. § 1983 claims for damages that are based on convictions that have not been challenged on direct appeal or invalidated in state post-conviction relief. See Lyall v. City of Los Angeles , 807 F.3d 1178, 1192 n.12 (9th Cir. 2015).
I also agree that Heck and its progeny have no application where there is no "conviction or sentence" that would be undermined by granting a plaintiff's request for relief under § 1983. Heck , 512 U.S. at 486-87, 114 S.Ct. 2364 ; see also Wallace v. Kato , 549 U.S. 384, 393, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). I therefore concur in the majority's conclusion that Heck does not bar plaintiffs Robert Martin and Pamela Hawkes from seeking retrospective relief for the two instances in which they received citations, but not convictions. I also concur in the majority's Eighth Amendment analysis as to those two claims for retrospective relief.
Where I part ways with the majority is in my understanding of Heck 's application to the plaintiffs' claims for declaratory and injunctive relief. In Wilkinson v. Dotson , 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Supreme Court explained where the Heck doctrine stands today:
[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration.
Id. at 81-82. Here, the majority acknowledges this language in Wilkinson , but concludes that Heck 's bar on any type of relief that "would necessarily demonstrate the invalidity of confinement" does not preclude the prospective claims at issue. The majority reasons that the purpose of Heck is "to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge," and so concludes that the plaintiffs' prospective claims may proceed. I respectfully disagree.
A declaration that the city ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity of the plaintiffs' prior convictions. Indeed, any time an individual challenges the constitutionality of a substantive criminal statute under which he has been convicted, he asks for a judgment that would necessarily demonstrate the invalidity of his conviction. And though neither the Supreme Court nor this court has squarely addressed Heck 's application to § 1983 claims challenging the constitutionality of a substantive criminal statute, I believe Edwards v. Balisok , 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), makes clear that Heck prohibits such challenges. In Edwards , the Supreme Court explained that although our court had recognized that Heck barred § 1983 claims challenging the validity of a prisoner's confinement "as a substantive matter," it improperly distinguished as not Heck -barred all claims alleging only procedural violations. 520 U.S. at 645, 117 S.Ct. 1584. In holding that Heck also barred those procedural claims that would necessarily imply the invalidity of a conviction, the Court did not question our conclusion that claims challenging a conviction "as a substantive matter" are barred by Heck . Id. ; see also Wilkinson , 544 U.S. at 82, 125 S.Ct. 1242 (holding that the plaintiffs' claims could proceed because the relief requested would only "render invalid the state procedures " and "a favorable judgment [would] not 'necessarily imply the invalidity of [their] conviction[s] or sentence[s]' " (emphasis added) (quoting Heck , 512 U.S. at 487, 114 S.Ct. 2364 )).
Edwards thus leads me to conclude that an individual who was convicted under a criminal statute, but who did not challenge the constitutionality of the statute at the time of his conviction through direct appeal or post-conviction relief, cannot do so in the first instance by seeking declaratory or injunctive relief under § 1983. See Abusaid v. Hillsborough Cty. Bd. of Cty. Comm'rs , 405 F.3d 1298, 1316 n.9 (11th Cir. 2005) (assuming that a § 1983 claim challenging "the constitutionality of the ordinance under which [the petitioner was convicted]" would be Heck -barred). I therefore would hold that Heck bars the plaintiffs' claims for declaratory and injunctive relief.
We are not the first court to struggle applying Heck to "real life examples," nor will we be the last. See, e.g. , Spencer v. Kemna , 523 U.S. 1, 21, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (Ginsburg, J., concurring) (alterations and internal quotation marks omitted) (explaining that her thoughts on Heck had changed since she joined the majority opinion in that case). If the slate were blank, I would agree that the majority's holding as to prospective relief makes good sense. But because I read Heck and its progeny differently, I dissent as to that section of the majority's opinion. I otherwise join the majority in full.
With almost 553,000 people who experienced homelessness nationwide on a single night in January 2018, this issue affects communities across our country. U.S. Dep't of Hous. & Urban Dev., Office of Cmty. Planning & Dev., The 2018 Annual Homeless Assessment Report (AHAR) to Congress 1 (Dec. 2018), https://www.hudexchange.info/resources/documents/2018-AHAR-Part-1.pdf.
1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large 440, 441 (1689) (Section 10 of the English Declaration of Rights) ("excessive Baile ought not to be required, nor excessive Fines imposed; nor cruell and unusuall Punishments inflicted.").
Jones , of course, was vacated and lacks precedential value. 505 F.3d 1006 (9th Cir. 2007). But the panel here resuscitated Jones 's errant holding, including, apparently, its application of the Cruel and Unusual Punishments Clause in the absence of a criminal conviction. We should have taken this case en banc to correct this misinterpretation of the Eighth Amendment.
We have emphasized the need to proceed cautiously when extending the reach of the Cruel and Unusual Punishments Clause beyond regulation of the methods of punishment that may be inflicted upon conviction for an offense. See United States v. Ritter , 752 F.2d 435, 438 (9th Cir. 1985) (repeating Ingraham 's direction that "this particular use of the cruel and unusual punishment clause is to be applied sparingly" and noting that Robinson represents "the rare type of case in which the clause has been used to limit what may be made criminal"); see also United States v. Ayala , 35 F.3d 423, 426 (9th Cir. 1994) (limiting application of Robinson to crimes lacking an actus reus). The panel's holding here throws that caution to the wind.
Judge Friendly also expressed "considerable doubt that the cruel and unusual punishment clause is properly applicable at all until after conviction and sentence." Johnson v. Glick , 481 F.2d 1028, 1032 (2d Cir. 1973).
Standing to pursue retrospective relief is not in doubt. The only threshold question affecting the availability of a claim for retrospective relief - a question we address in the next section - is whether such relief is barred by the doctrine established in Heck .
Although the SAC is somewhat ambiguous regarding which of the plaintiffs seeks prospective relief, counsel for the plaintiffs made clear at oral argument that only two of the plaintiffs, Martin and Anderson, seek such relief, and the district court considered the standing question with respect to Martin and Anderson only.
Plaintiff Pamela Hawkes was convicted of violating the Camping Ordinance or Disorderly Conduct Ordinance on twelve occasions; although she was usually sentenced to time served, she was twice sentenced to one additional day in jail.
Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. See Jones , 444 F.3d at 1123. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the "universal and unavoidable consequences of being human" in the way the ordinance prescribes. Id. at 1136.
In Joel v. City of Orlando , 232 F.3d 1353, 1362 (11th Cir. 2000), the Eleventh Circuit upheld an anti-camping ordinance similar to Boise's against an Eighth Amendment challenge. In Joel , however, the defendants presented unrefuted evidence that the homeless shelters in the City of Orlando had never reached capacity and that the plaintiffs had always enjoyed access to shelter space. Id . Those unrefuted facts were critical to the court's holding. Id . As discussed below, the plaintiffs here have demonstrated a genuine issue of material fact concerning whether they have been denied access to shelter in the past or expect to be so denied in the future. Joel therefore does not provide persuasive guidance for this case.
Costs shall be awarded to the plaintiffs.

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