Cuagliotti v. Mesa, City of

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Carl Cuagliotti,
Plaintiff,
v.
City of Mesa,
Defendant.
No. CV-24-02970-PHX-DWL
ORDER
The City of Mesa (“City”) has enacted municipal ordinances that prohibit camping
in City parks and on City property. In this action, Carl Cuagliotti (“Plaintiff”), who is
proceeding pro se, asserts an array of constitutional challenges to those ordinances, arguing
that they (1) violate his Fourteenth Amendment substantive due process rights to
“autonomy in making personal life choices,” to sleep, and “to determine where and how to
live”; (2) result in coercion that amounts to an “unlawful seizure” in violation of the Fourth
Amendment; (3) violate his Fourteenth Amendment substantive due process rights to
“intrastate travel” and to be free from “constructive banishment”; (4) violate his Fourteenth
Amendment right to procedural due process; and (5) are unconstitutionally vague.
Now pending before the Court are the City’s motion to dismiss (Doc. 25) and
Plaintiff’s motion for leave to file a surreply (Doc. 32). Those motions are fully briefed
and neither side requested oral argument. For the reasons that follow, the City’s motion is
granted and Plaintiff’s motion is denied.
…
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BACKGROUND
I. Factual Allegations
The following facts, presumed true, are derived from Plaintiff’s operative pleading,
the Second Amended Complaint (“SAC”). (Doc. 15.)
A. Plaintiff’s Housing Status
“Plaintiff is a resident of Arizona” who “regularly utilizes public parks in Mesa,
Arizona, as a place for resting and recuperating after working long hours. Preferring to
save his financial resources for future needs rather than spending on rent, Plaintiff lives a
minimalistic lifestyle that involves responsible use of public spaces.” (Id. ¶¶ 8, 33.)
B. October 2024 Incident
In October 2024, “Plaintiff was approached by two armed rangers while sleeping in
a park.” (Id. ¶ 34.) One of those rangers woke up Plaintiff and stated: “[Y]ou have to
remain upright. You cannot lay down or sleep in the park.” (Id.) The ranger then “asked
if Plaintiff was homeless and offered Plaintiff to call a [Community Bridges] navigator or
Phoenix rescue mission.” (Id.) “Plaintiff refused the offer,” and the ranger replied by
stating: “[T]hen I don’t want to see you laying down again or you will get a ticket.” (Id.)
“After the rangers left, Plaintiff left the park for fear of further harassment from the
rangers.” (Id.)
C. November 2024 Incident
On November 2, 2024, “Plaintiff was approached by a representative from a local
shelter, who offered him shelter services.” (Id. ¶ 35.) “Plaintiff, not in need of or desiring
such services, formally requested that the shelter representative and Phoenix Rescue
Mission refrain from approaching him in the future.” (Id.) Plaintiff “explicitly informed
the representative that any further approach would warrant a request for a restraining
order.” (Id.)
“Approximately fifteen minutes after this encounter, Plaintiff was approached by
two armed park rangers who accused him of violating Mesa City Code (MCC) § 6-10-4(V)
by allegedly ‘storing personal belongings’ in the park due to the presence of his
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backpacks.” (Id. ¶ 36.) Plaintiff then “explained” to the rangers “that he had only recently
arrived at the park and had no intention of using it as a place for ‘storing personal
belongings.’” (Id.) “Despite this explanation, the park rangers dismissed [Plaintiff’s]
statements, asserting that ‘storing personal belongings’ constituted a violation, regardless
of the short duration he had been present.” (Id.) “The armed park rangers told [P]laintiff
that having just one or two backpacks would be alright, but since he had more than that, it
constituted a violation of the ordinance,” and the park rangers further “threatened to issue
a citation if Plaintiff did not comply with their directive to reduce the number of bags he
was carrying.” (Id. ¶¶ 36-37.) “Afterwards, both rangers adopted an aggressive tone and
implied that further noncompliance would lead to Plaintiff’s expulsion from the park and/or
a criminal citation.” (Id. ¶ 38.) Plaintiff then asked the rangers “why he was being singled
out while others in the park were not questioned,” to which “the rangers responded that
others were ‘recreating,’ implicitly suggesting that Plaintiff’s presence was unwelcome
based on the appearance of his backpacks.” (Id. ¶ 39.)
During this encounter, one of the rangers further “displayed a discriminatory
attitude by stating, ‘When one homeless person is present, they all start congregating,’”
although Plaintiff “clarif[ied] that he neither associates with others nor forms any
gatherings in the park.” (Id. ¶ 40.) The rangers also “falsely accused Plaintiff of being
someone they had previously warned in another park, attempting to misidentify him as a
repeat offender despite Plaintiff’s assertions to the contrary.” (Id. ¶ 41.)
Ultimately, “the first ranger explicitly warned that if Plaintiff did not comply, he
would be banished from the park and/or cited under MCC 6-10-4(V) for the number of
bags he had.” (Id. ¶ 42.) “Faced with the imminent threat of citation or expulsion, Plaintiff
had no real choice but to comply, doing so under duress.” (Id.) “As a direct result of this
encounter, Plaintiff avoided the park for several months, fearing further enforcement
actions.” (Id. ¶ 43.)
D. April 2025 Incident
On April 13, 2025, “Plaintiff was seated at a picnic table in a public park within the
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City of Mesa, with some backpacks and grocery bags placed near him and on the table.”
(Id. ¶ 44.) “Plaintiff was not camping, nor was he storing items unattended,” but instead
“was merely resting in the park with his personal belongings in his immediate possession.”
(Id.) “Mesa park rangers approached Plaintiff and instructed him to consolidate his bags,
asserting that having them spread out on the table constituted ‘storing personal belongings’
in violation of [MCC] § 6-10-4(V).” (Id. ¶ 45.) Plaintiff responded by “explain[ing] that
he was not ‘storing’ items within the ordinary or legal meaning of the term” because, in
Plaintiff’s view, “‘storing’ implies leaving possessions behind and returning later to
retrieve them, which was not the case.” (Id.) In response, “one of the rangers insisted that
the number and placement of bags constituted a violation.” (Id. ¶ 46.) “Another ranger
then inquired whether Plaintiff was homeless,” and “[u]pon Plaintiff’s affirmative
response, the ranger attempted to offer services from Phoenix Rescue Mission and other
outreach programs.” (Id.) “Plaintiff declined these services and clearly stated that he was
not interested in shelter or programmatic intervention.” (Id. ¶ 47.) “In response, the ranger
repeated the demand that Plaintiff move his bags closer together and stated, ‘So are you
going to put your bags closer together or do you want a citation?’” (Id. ¶ 48.) “When
Plaintiff stood firm . . . , the ranger issued Plaintiff a criminal citation for alleged ‘urban
camping’ under MCC § 6-10-4(V).” (Id. See also Doc. 15-2 [copy of citation attached to
the SAC].)1 “Plaintiff was then informed by the ranger that he was being expulsed from
the park and could not return until after his scheduled court date.” (Doc. 15 ¶ 49.)
II. The Challenged Ordinances
Plaintiff challenges the constitutionality of three City ordinances (“the Challenged
Ordinances”), excerpted here.
A. MCC § 6-10-4(V) (“Public Park Regulations—Prohibited Activities and
Restrictions”)
It is a violation of this Chapter for a person in a park to engage in any of the
prohibited activities or to violate any of the restrictions set forth in this
1 The Court notes that MCC § 6-10-4(V) is the ordinance that prohibits camping in
parks, whereas MCC § 6-1-23 is the ordinance that prohibits “urban camping.”
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Section, unless otherwise allowed pursuant to the Subsections below:
…
(V) Camping. No person shall camp, establish or maintain camping
facilities, or use or store camping paraphernalia in a city park or
adjacent right-of-way.
(1) This Section does not apply to:
(A) Temporary structures or camps set up by a government
agency or relief workers during a disaster or emergency
situation.
(B) Activities approved by the Director or city that receive
a special event license, special use permit, or other
permit or permission.
(2) If any camping paraphernalia or item used for camping is left
unattended or abandoned in a park, the City may confiscate and
discard the item in accordance with applicable law.
(3) Nothing in this Subsection is intended to interfere with
otherwise lawful and ordinary uses of park property or adjacent
right-of-way.
B. MCC § 6-10-2 (“Public Park Regulations—Definitions”)
The terms of this Chapter have the below meanings, whether or not the term
is capitalized, unless the context requires otherwise. Words in the present
tense include the future tense, words in the plural number include the singular
number, and words in the singular number include the plural number.
Definitions set forth in this Section apply only to this Chapter and do not
affect and are not to be applied to any other Mesa City Code.
…
CAMP or CAMPING: means to establish temporary or permanent living
accommodations in a park or adjacent right-of-way. Indications of camping
include laying down bedding, using camp paraphernalia, erecting temporary
structures for shelter, sleeping, storing personal belongings, burning a fire,
cooking or preparing food, living in a parked motor or recreational vehicle,
or remaining for prolonged or repetitious periods of time in a manner not
associated with ordinary recreational use of a park. An activity shall
constitute camping when it reasonably appears, in light of all the
circumstances, the person, in conducting the activity, are in fact using the
area for the purpose of living accommodations, regardless of the intent of the
participants or the nature of any other activities in which they may also be
engaging. For the purposes of clarity, the term “camp” or “camping” in this
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Chapter 10 does not refer to the mere use of city-installed cooking facilities
or equipment, the possession or transportation of camping paraphernalia, or
the use of a blanket for resting absent other evidence of living
accommodations.
CAMPING PARAPHERNALIA: means any accessory, equipment, or item
commonly used to assist someone to camp, including tarpaulins, cots, beds,
bedding, sleeping bags, hammocks, tents, blankets, and cooking equipment.
. . .
STORE: means to put aside or accumulate for use when needed, to put for
safekeeping, to place or leave in a location.
C. MCC § 6-1-23 (“General Offenses—Urban Camping”)2
(A) The use of City property for camping purposes or storage of personal
property without the express permission of the City interferes with the
rights of others to use the areas for which they were intended and can
constitute a public health and safety hazard that adversely impacts
surrounding property. The purpose of this section is to maintain City
property in a clean, sanitary and accessible condition, and to
adequately protect the health, safety, and welfare of the community,
while recognizing that certain temporary camping associated with
emergencies or special events or activities can be beneficial. Nothing
in this Section is intended to interfere with otherwise lawful and
ordinary uses of public property.
(B) The definitions contained in this Subsection (B) shall only govern the
construction, meaning, and application of words and phrases used in
this Section.
“CAMP” or “CAMPING”: means to establish temporary or
permanent living accommodations on City Property. Indications of
camping include laying down bedding, using camp paraphernalia,
erecting temporary structures for shelter, sleeping, storing personal
belongings, burning a fire, cooking or preparing food, or living in a
parked motor or recreational vehicle. An activity shall constitute
camping when it reasonably appears, in light of all the circumstances,
the person, in conducting the activity, are in fact using the area for the
purpose of living accommodations, regardless of the intent of the
participants or the nature of any other activities in which they may
also be engaging. For the purposes of clarity, the term “Camp” or
“Camping” in this Section does not refer to the mere possession or
2 This provision was enacted via Ordinance No. 5892. The SAC refers to it by this
ordinance number.
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transportation of Camping Paraphernalia, or the use of a blanket for
resting, absent other evidence of living accommodations.
CAMPING PARAPHERNALIA: any accessory, equipment, or
item commonly used to assist someone to camp, including tarpaulins,
cots, beds, bedding, sleeping bags, hammocks, tents, blankets, and
cooking equipment.
. . .
STORE: means to put aside or accumulate for use when needed, to
put for safekeeping, to place or leave in a location.
(C) It is unlawful for any person on City property to camp, establish or
maintain camping facilities, or use or store camping paraphernalia.
(D) This section does not apply to:
(1) Camping or activities in a park which is governed by Mesa City
Code Title 6, Chapter 10.
(2) Temporary structures or camps set up by government agency
or relief workers during a disaster or emergency situation.
(3) Activities approved by the City that receive a special event
license, special use permit, lease, license, or other permit or
permission.
(E) Any person convicted of a violation of this Section shall be guilty of
a class 3 criminal misdemeanor. Each day of violation continued shall
be a separate offense, punishable as described.
III. Procedural History
On October 29, 2024, Plaintiff initiated this action. (Docs. 1-2.)
On November 13, 2024, Plaintiff filed the First Amended Complaint (“FAC”).
(Doc. 5.)
On March 6, 2025, the then-assigned judge issued an order granting Plaintiff’s
motion to proceed in forma pauperis and screening the FAC. (Doc. 8.) The court held that
the FAC stated a claim sufficient to survive screening under 28 U.S.C. § 1915(e)(2) with
respect to (1) Plaintiff’s Fourteenth Amendment substantive due process claim, (2)
Plaintiff’s Fourth Amendment unlawful seizure claim, and (3) Plaintiff’s vagueness claim.
(Id.) The Court dismissed the FAC’s claims premised on (1) a public health argument
alleging sleep deprivation and torture, (2) the ordinances being unnecessary and redundant,
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and (3) overbreadth. (Id.)
On March 25, 2025, Plaintiff moved for leave to file the SAC. (Doc. 11.)3 On
March 26, 2025, the then-assigned judge issued an order that, among other things, granted
Plaintiff’s request for leave to file the SAC. (Doc. 13.)
On April 17, 2025, Plaintiff filed the SAC. (Doc. 15.)
On May 6, 2025, Plaintiff filed a “Notice of Supplemental Legal Authority and
Memorandum Regarding the Requirement of Intent Under the Fourteenth Amendment.”
(Doc. 16.)
On June 18, 2025, Plaintiff filed a “Motion for Leave to File Third Amended
Complaint and Motion for Temporary Restraining Order,” a “Motion for Temporary
Restraining Order and Preliminary Injunction,” and a “Motion for Temporary Restraining
Order and Request for Expedited Consideration.” (Docs. 17-19.)
On June 22, 2025, Plaintiff filed a “Notice of Supplemental Authority in Support of
Motion for Temporary Restraining Order (Chandler Ordinance)” and “Notice of
Supplemental Authority (Leave to Add Chandler as Defendant).” (Docs. 20-21.) And on
July 3, 2023, Plaintiff filed additional attachments relevant to his motions for leave to
amend and for a temporary restraining order. (Doc. 22.)
On July 11, 2025, the then-assigned judge issued an order denying Plaintiff’s
request for leave to file a TAC and denying both of Plaintiff’s requests for a temporary
restraining order. (Doc. 23.) The same order screened the SAC and found that “Counts
One, Two, and the part of Five of the SAC that previously survived screening are
substantially similar to the allegations in the FAC and therefore need not be rescreened.”
(Id. at 4.) The order also allowed the SAC’s new claims premised on the right to travel
and on procedural due process to proceed. (Id. at 5-7.)
On September 23, 2025, the City filed the pending motion to dismiss. (Doc. 25.)
Afterward, this action was reassigned to the undersigned (Doc. 26) and the motion to
3 Plaintiff’s motion mistakenly sought leave to file a third amended complaint
(“TAC”).
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dismiss became fully briefed (Docs. 27, 30).
On October 6, 2025, Plaintiff filed a “Notice of Supplemental Authority and
Memorandum Regarding Less Restrictive Means for Addressing Encampments.” (Doc.
28; Doc. 29 [errata].)
On October 27, 2025, Plaintiff filed a “Notice of Supplemental Fact.” (Doc. 31.)
On October 28, 2025, Plaintiff filed the pending motion for leave to file a surreply.
(Doc. 32.) That motion is now fully briefed. (Doc. 33.)
DISCUSSION
I. Plaintiff’s Motion For Leave To File A Surreply
A. The Parties’ Arguments
Plaintiff requests leave to file a surreply, arguing that the City’s “[r]eply introduces
new arguments and mischaracterizations not raised in its original Motion to Dismiss”—
namely, (1) “[a] new and narrowed interpretation of ‘seizure’ under the Fourth
Amendment, suggesting that only an arrest qualifies as a seizure”; (2) “[a] new claim that
Plaintiff’s alleged expulsion and citation did not constitute a deprivation of liberty or
require due process”; (3) “[n]ew factual assertions that Plaintiff ‘did not have to attend
court’ and ‘suffered no consequences’”; (4) “[a] new justification for the ordinance based
on other cities’ nuisance litigation, offered for the first time in reply.” (Doc. 32 at 2-3,
citations omitted.)
In response, the City argues a surreply is not warranted because it “did not raise new
arguments in its [r]eply.” (Doc. 33 at 1.) Specifically, the City contends that its “arguments
regarding lack of seizure, lack of violation of any liberty interest, and lack of allegations
of any legal consequences for Plaintiff were all raised in the original Motion to Dismiss”
and that its reply “simply responds to Plaintiff’s arguments and the inapposite state court
nuisance cases Plaintiff raised in” his Notice of Supplemental Authority. (Id. at 1-2.)
B. Analysis
“Surreplies are highly disfavored and permitted only in extraordinary
circumstances.” Fitzhugh v. Miller, 2020 WL 1640495, *9 (D. Ariz. 2020) (cleaned up).
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“Although the Court may in its discretion allow the filing of a surreply, this discretion
should be exercised in favor of allowing a surreply only where a valid reason for such
additional briefing exists, such as where the movant raises new arguments in its reply
brief.” Id. (citation omitted). Here, the City did not raise new arguments in its reply. Each
of the arguments Plaintiff claims are “new” were either (1) raised in the City’s initial
motion to dismiss and/or (2) simply respond to arguments that Plaintiff made in his
response brief and in his Notice of Supplemental Authority. Accordingly, the Court will
not consider the arguments raised in Plaintiff’s proposed surreply (Doc. 32-1) when
evaluating the City’s motion to dismiss.
II. Plaintiff’s “Notices”
On May 6, 2025—after the SAC was filed but before the City moved to dismiss—
Plaintiff filed a notice of supplemental legal authority “regarding the requirement of intent
under the Fourteenth Amendment.” (Doc. 16 at 1.) In that notice, Plaintiff argues there is
an additional reason, other than those identified in the SAC, why the Challenged
Ordinances are unconstitutional—i.e., because they criminalize conduct “regardless of the
intent” of the person engaged in the conduct. (Id.) Given Plaintiff’s status as a pro se
litigant, and because the City had the opportunity to respond to this argument before filing
its motion to dismiss and responded to this argument in its reply without procedurally
objecting to it, the Court will consider the parties’ intent-related arguments when
evaluating the City’s motion to dismiss.
On October 6, 2025—five days after Plaintiff filed his response to the City’s motion
to dismiss—Plaintiff filed a notice of supplemental authority “regarding less restrictive
means for addressing encampments.” (Doc. 28.) The crux of Plaintiff’s argument in that
notice is that the Challenged Ordinances are “unnecessary” because Arizona public
nuisance law already provides an “adequate and constitutionally valid legal mechanism[]
to regulate hazardous encampments.” (Id. at 1.) The City did not specifically object to the
filing of this notice but did argue in its reply that the authorities cited in the notice “do not
support any of Plaintiffs’ arguments” and “[i]f anything, these cases only further establish
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that the State has a legitimate interest in maintaining cleanliness and safety in its public
areas.” (Doc. 30 at 10 n.5.)
The Court will not consider the arguments raised in Plaintiff’s notice. First, it
appears to re-raise arguments Plaintiff raised in Count Four of the FAC. (Doc. 5 ¶¶ 33-38
[asserting a claim that “the ordinance is unnecessary and redundant” because other Arizona
laws, including “Arizona’s public nuisance statutes,” already “address the concerns related
to health and sanitation”].) But that Count was dismissed in the March 6, 2025 screening
order and remains subject to dismissal for the same reasons specified in that order. (Doc.
8 at 4-5.) Second, even if the Court were to construe Plaintiff’s notice as an attempted
extension of his response brief, Plaintiff already used the full 17 pages allowed under the
Local Rules for his response brief, so consideration of his notice would allow him to
circumvent that page limit.
On October 27, 2025—over two weeks after the City filed its reply in support of its
motion to dismiss—Plaintiff filed a “notice of supplemental fact.” (Doc. 31.) In that
notice, Plaintiff “notifie[d] the Court of a recent enforcement-related encounter” he had
with a City police officer in a City park. (Id. at 2.) The City did not respond to the notice.
The Court will not consider the supplemental facts provided in Plaintiff’s notice because
they are not asserted in the complaint, subject to judicial notice, or incorporated by
reference in the complaint. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003).4
III. The City’s Motion To Dismiss
A. Legal Standard
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (cleaned up). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
4 At any rate, even if the Court were to construe the notice as a request to amend the
SAC, the request would be denied as futile because the additional facts provided in the
notice would not alter the dismissal analysis in this order.
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(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll well-pleaded allegations of
material fact in the complaint are accepted as true and are construed in the light most
favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, the Court
need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-
80. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due
to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th
Cir. 2015) (citation omitted).
B. Count One
In Count One, Plaintiff alleges that the Challenged Ordinances violate his
Fourteenth Amendment substantive due process rights “to autonomy in making personal
life choices,” to sleep, and “to determine where and how to live.” (Doc. 15 ¶¶ 52-57.)
1. The Parties’ Arguments
The City argues that Count One “overstates the guarantees of the Fourteenth
Amendment and misinterprets the ordinances.” (Doc. 25 at 4.) At bottom, the City argues
that “Plaintiff has failed to identify a constitutionally protected interest threatened by the
[Challenged Ordinances].” (Id. at 7.) As for Plaintiff’s alleged right to “autonomy in
personal life choices,” the City argues that “no case supports such a right” and that
“Plaintiff cannot prevail on the basis that the Constitution guarantees a broad, generalized
freedom of choice.” (Id. at 5.) The City further argues that “[e]ven if the Court views
Plaintiff’s asserted right more narrowly, he is still claiming, in essence, that individuals
have a constitutional right to decline traditional housing and shelter services, and thus, by
way of choosing not to live elsewhere, they must have the right to live in city parks or
public areas. But no case supports this position either.” (Id.) As for Plaintiff’s alleged
right to sleep, the City argues that the Challenged Ordinances “do not criminalize
sleeping,” so “even if Plaintiff could identify a constitutional right to sleeping, the
ordinances at issue do not infringe on that right.” (Id.) Last, the City acknowledges that
“courts in this circuit have recognized a Fourteenth Amendment substantive due process
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claim in cases relating to city-wide policies that impact the homeless,” but the City notes
that, “in those cases, the plaintiffs alleged a ‘state-created danger.’” (Id. at 5-6.) The City
argues that “Plaintiff has not, and cannot, allege state-created danger here” because “he
affirmatively alleges that he voluntarily declined the alternative shelter services that the
City offered.” (Id. at 6.)
In response, Plaintiff argues that the Challenged Ordinances “criminalize harmless,
life-sustaining conduct and coerce individuals into restrictive, quasi-carceral shelter
programs.” (Doc. 27 at 1.) Plaintiff further argues that “the Supreme Court has long
recognized that substantive due process protects personal decisions ‘central to individual
dignity and autonomy’” and that “[t]he right to determine ‘where and how to live’ and to
refuse treatment is part of that autonomy.” (Id. at 2, citations omitted.) As for the offers
of shelter, Plaintiff argues that these shelter programs “sharply restrict liberty,” that the
City’s offers were “coercive rather than voluntary,” and that the “Fourteenth Amendment
includes the freedom to refuse such involuntary confinement.” (Id.) Last, Plaintiff argues
that he “is not alleging a right to housing or placing a dwelling in the city of Mesa” and is
instead “alleging a right to exist, travel and rest in public spaces while visiting.” (Id. at 3.)
In reply, the City reiterates that “Plaintiff asserts he has been deprived of the
generalized ‘right to autonomy in making personal life choices’” and that “[n]o such right
exists.” (Doc. 30 at 2.) The City also seeks to distinguish the cases cited by Plaintiff,
arguing that those cases—which “focused on the fundamental right to marry in the context
of same-sex couples,” “a woman’s right to terminate her pregnancy,” and the “right to
die”—fail to support “Plaintiff’s proposal for a new constitutional right . . . ‘to determine
where and how to live.’” (Id.)
2. Analysis
The doctrine of substantive due process is a “durable oxymoron” that “allows
persons harmed by state regulation to complain that the regulation is so unreasonable a
deprivation of life, liberty, or property that it is unconstitutional even if adopted and applied
in conformity with the most rigorous procedural safeguards.” Ill. Psychological Ass'n v.
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Falk, 818 F.2d 1337, 1342 (7th Cir. 1987). It “has been criticized by a wide variety of
people for a wide variety of reasons,” including, “most obviously,” “the pesky issue of
constitutional text.” Hillcrest Prop., LLP v. Pasco Cnty., 915 F.3d 1292, 1304 (11th Cir.
2019) (Newsom, J., concurring). Yet even though the “theory . . . that the Fourteenth
Amendment’s Due Process Clause provides substantive, as well as procedural, protection
. . . has long been controversial,” the Supreme Court recently reaffirmed that “the Due
Process Clause of the Fourteenth Amendment . . . has been held to guarantee some rights
that are not mentioned in the Constitution,” albeit only rights that are “deeply rooted in this
Nation’s history and tradition and implicit in the concept of ordered liberty.” Dobbs v.
Jackson Women’s Health Org., 597 U.S. 215, 231, 237 (2022) (cleaned up). See also
Mirabella v. Bonta, __ S. Ct. __, 2026 WL 575049, *4 (Barrett, J., concurring) (“Dobbs
calls into question neither the doctrine of substantive due process nor the other unexpressed
rights that the doctrine protects. . . . It does not follow from Dobbs that all our substantive
due process cases conflict with [Washington v. Glucksberg, 521 U.S. 702 (1997)], much
less that stare decisis would counsel overruling any that do.”).
Even so, substantive due process claims “require, as a threshold matter, that
plaintiffs show they were deprived of a ‘constitutionally protected life, liberty or property
interest.’” Hotop v. City of San Jose, 982 F.3d 710, 718 (9th Cir. 2020) (citation omitted).
Under the Ninth Circuit’s “‘established method’ of substantive due process analysis,” the
first step in the analysis is “‘carefully formulating’ the asserted fundamental right.” Regino
v. Staley, 133 F.4th 951, 964 (9th Cir. 2025). Courts must “reject[] broad formulations of
asserted fundamental rights, in favor of being ‘more precise.’” Id. (citation omitted). See
also Khachatryan v. Blinken, 4 F.4th 841, 855-56 (9th Cir. 2021) (“Danuns’s due process
claim is based on the contention that his ‘freedom to make personal choices in family life’
is a constitutionally protected liberty interest and that the denial of his father’s visa deprives
him of that liberty so as to trigger procedural due process protections. We think that
Danuns defines the asserted interest at too high a level of generality. The Supreme Court
has instructed us to exercise the utmost care before breaking new ground in the area of
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unenumerated fundamental rights, and the Court has insisted on a careful description of the
asserted fundamental liberty interest. Thus, new fundamental rights ordinarily must be
defined in a most circumscribed manner, with central reference to specific historical
practices.”) (cleaned up).
Next, once the asserted fundamental right has been properly articulated, “the district
court must consider whether the asserted right itself, or one in which it is encompassed, is
objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept
of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed.”
Regino, 133 F.4th at 965 (cleaned up). “The range of liberty interests that substantive due
process protects is narrow and only those aspects of liberty that we as a society traditionally
have protected as fundamental are included within the substantive protection of the Due
Process Clause.” Franceschi v. Yee, 887 F.3d 927, 937 (9th Cir. 2018) (cleaned up). “In
interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we must
guard against the natural human tendency to confuse what that Amendment protects with
our own ardent views about the liberty that Americans should enjoy.” Dobbs, 597 U.S. at
239. “The protections of substantive due process have for the most part been accorded to
matters relating to marriage, family, procreation, and the right to bodily integrity.” Nunez
v. City of L.A., 147 F.3d 867, 871 n.4 (9th Cir. 1998) (quoting Albright v. Oliver, 510 U.S.
266, 272 (1994)). “These fields likely represent the outer bounds of substantive due
process protection.” Id.
Here, Count One fails because Plaintiff has not satisfied the threshold requirement
of identifying the sort of liberty interest that receives substantive protection under the
Fourteenth Amendment. Count One identifies three alleged liberty interests: (1) “the right
to autonomy in making personal life choices”; (2) the right to sleep; and (3) the “right to
determine where and how to live.” Starting with the first item on this list, an initial problem
is that Plaintiff defines the alleged right at an excessively high level of generality—
“personal life choices” is an amorphous term that can be construed to cover practically the
gamut of human existence. For this reason alone, the theory fails. Khachatryan, 4 F.4th
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at 855-56.
The theory also fails during the second step of the substantive due process analysis.
No Ninth Circuit or Supreme Court case recognizes a broad and expansive right to
“autonomy” in making “personal life choices.” In an attempt to establish the existence of
such a right, Plaintiff cites Obergefell v. Hodges, 576 U.S. 644 (2015), Planned Parenthood
of Se. Pa. v. Casey, 505 U.S. 833 (1992), and Cruzan v. Dir., Mo. Dep’t of Health, 497
U.S. 261 (1990). But Casey was recently overruled by the Supreme Court in Dobbs and
this case is not remotely similar to Obergefell, which involved marriage rights, or Cruzan,
which involved the right to refuse medical treatment.5 Indeed, “matters relating to
marriage, family, procreation, and the right to bodily integrity . . . likely represent the outer
bounds of substantive due process protection.” Nunez, 147 F.3d at 871 n.4 (citation and
internal quotation marks omitted). Nor is the asserted right to autonomy in personal life
choices “objectively, deeply rooted in this Nation’s history and tradition and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if it was
sacrificed.” Regino, 133 F.4th at 965 (cleaned up).
Second, as for the alleged right to sleep, Plaintiff once again errs by framing his
claim in overly general terms. The Challenged Ordinances do not forbid the act of sleeping.
A more precise articulation of Plaintiff’s theory is that he claims a right to sleep wherever
and whenever he pleases,6 but the parties have not identified, and the Court has not located,
a case recognizing the existence of such a sweeping right. See, e.g., Joel v. City of Orlando,
232 F.3d 1353, 1357 (11th Cir. 2000) (rejecting homeless plaintiff’s constitutional
challenge to a city ordinance that prohibited camping on public property, disagreeing with
the notion that “sleeping out-of-doors [is] a fundamental right,” and collecting cases
5 Plaintiff argues, appearing to rely on Cruzan, that by “effectively coerc[ing]
individuals into accepting placement in shelters or programs,” the City is violating the right
to refuse treatment. (Doc. 27 at 3.) But the Challenged Ordinances do not require people
to accept treatment—rather, as alleged in the SAC, the Challenged Ordinances allow for
accepting treatment or shelter services as one of many alternatives.
6 To the extent Plaintiff is attempting to assert a sleep deprivation claim, such a claim
has already been dismissed in this case. (Doc. 8 at 4.) Nor does the SAC contain any
factual allegations that would support a sleep deprivation claim.
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reaching the same conclusion); Berry v. Hennepin Cnty., 2022 WL 3579747, *9 (D. Minn.
2022) (“Plaintiffs cite no legal authority that recognizes a privacy right to ‘safely sleep on
public land when no alternative exists.’ And the Court’s research has not identified any.
The Court grants MPRB Defendants’ motion to dismiss Plaintiffs’ substantive-due-process
claim based on privacy interests, as alleged in Count IV of the complaint.”). Nor is such a
right “objectively, deeply rooted in this Nation’s history and tradition and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if it was
sacrificed.” Regino, 133 F.4th at 965 (cleaned up).
Finally, as for the alleged right to determine “where and how to live,” Plaintiff once
again seeks to define this right at an impermissibly high level of generality. Khachatryan,
4 F.4th at 855-56. At any rate, the Court has once again not located a case recognizing
such a constitutionally protected liberty interest.7 Nor is this alleged right “objectively,
deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if it was sacrificed,” Regino, 133
F.4th at 965 (cleaned up), or related to marriage, family, procreation, or the right to bodily
integrity, Nunez, 147 F.3d at 871 n.4.
The analysis would be the same if Plaintiff’s third theory were more specifically
reframed as a right to choose homelessness. (Doc. 15 ¶ 55 [“The right to determine where
and how to live, including the choice to live frugally and avoid the burdens of housing,
falls within the substantive protections of the Fourteenth Amendment.”].) The Supreme
Court has not recognized a constitutional right to be homeless. Cochran v. City of Wichita,
2018 WL 4637237, *9 (D. Kan. 2018), aff’d, 771 F. App’x 466 (10th Cir. 2019)
(“Plaintiff’s complaint also contends that the camping ordinance violates his rights under
the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments. Plaintiff’s
7 In his response, Plaintiff appears to change his tune, arguing that he “is not alleging
a right to housing or placing a dwelling in the city of Mesa” and is instead “alleging a right
to exist, travel and rest in public spaces while visiting.” (Doc. 27 at 3.) But even assuming
these are constitutionally protected rights, the Challenged Ordinances do not infringe them
because the Challenged Ordinances only prohibit the “establish[ment] [of] temporary or
permanent living accommodations.” MCC § 6-10-2 (defining “camp” or “camping”);
MCC § 6-1-23 (same). See also Sections II.D-E, infra.
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allegations are wholly conclusory and fail to state a claim. Plaintiff’s claims are based on
his alleged constitutional right to be homeless. The Supreme Cout has not held that there
is a constitutional right to be homeless.”). See also Lindsey v. Normet, 405 U.S. 56, 74
(1972) (“We do not denigrate the importance of decent, safe, and sanitary housing. But
the Constitution does not provide judicial remedies for every social and economic ill. We
are unable to perceive in that document any constitutional guarantee of access to dwellings
of a particular quality . . . .”); Navarro v. City of Mountain View, 2021 WL 5205598, *6
(N.D. Cal. 2021) (“Does the right to travel encompass the right to be? It does not appear
so from the caselaw. Plaintiffs do not cite binding authority for the assertion that they have
a right to ‘peacefully dwell[] in the place of their choosing.’ As alleged, the complaint
does not state a plausible claim for violations of the right to travel. Therefore, the Court
dismisses these claims . . . .”).
At bottom, Plaintiff has failed to identify a constitutionally protected liberty interest
sufficient to support his substantive due process claim in Count One. Because this is a
“threshold” requirement, Hotop, 982 F.3d at 718, Count One is dismissed.8
…
8 The City also argues that although “courts in this circuit have recognized a
Fourteenth Amendment substantive due process claim in cases relating to city-wide
policies that impact the homeless, . . . in those cases, the plaintiffs alleged a ‘state-created
danger,’” and “Plaintiff has not, and cannot, allege state-created danger here” because “he
affirmatively alleges that he voluntarily declined the alternative shelter services that the
City offered.” (Doc. 25 at 5-6.) Plaintiff does not appear to respond to this argument, and
the Court agrees that the SAC does not assert (or contain sufficient factual allegations to
support) a state-created danger claim. See, e.g., Cobine v. City of Eureka, 250 F. Supp. 3d
423, 432-33 (N.D. Cal. 2017) (“Under the danger-creation doctrine, courts consider . . .
whether the danger was affirmatively created by the state action, and whether the state
acted with deliberate indifference to a known or obvious danger. . . . [C]onsidering the
stringent standard for finding deliberate indifference, the Court finds here that the
allegations do not confirm that the state action was the impetus that put Plaintiffs in an
inherently dangerous situation. . . . From the allegations in the amended complaint, it
appears that the encampment residents were permitted to sleep in a City-owned parking lot
or were offered temporary emergency shelter accommodations. The current circumstances
are certainly not ideal, but the Court finds they do not amount to a deliberate indifference
of placing Plaintiffs in an inherently more dangerous situation than they had faced
previously. The general circumstances of being homeless in Humboldt County cannot be
minimized. Without allegations of intentional eviction during precarious weather or other
facts indicating deliberate indifference to the safety and welfare of the population, the
Court must dismiss the claim.”).
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C. Count Two
In Count Two, Plaintiff alleges that the Challenged Ordinances “coerce[]
individuals” by “forcing them to choose between . . . [s]ubmitting to a restrictive shelter
with curfews and controlled conditions,” “[c]riminal charges and citations,” and
“[c]onstructive banishment” and thus “constitute[] an unlawful seizure,” in violation of the
Fourth Amendment, because they “significantly restrict[] Plaintiff’s freedom of movement
without reasonable suspicion of criminal activity.” (Doc. 15 ¶¶ 58-64.)
1. The Parties’ Arguments
The City argues that “Plaintiff attempts to stretch the Fourth Amendment beyond
its scope.” (Doc. 25 at 7.) Specifically, the City argues that “Plaintiff has not been seized,
either in actuality or by the choices he alleges he is presented” because a seizure may only
occur following “the application of force” or “a show of authority,” the latter of which
“requires the ‘submission to the assertion of authority.’” (Id., citations omitted.) The City
argues that “Plaintiff does not allege that he was physically restrained” and “instead
alleges, at most, that [the Challenged Ordinances] and their enforcement operate as a show
of authority that restrains his liberty.” (Id. at 8.) The City further argues that for there to
be a seizure, a “reasonable person” must “have believed that he was not free to leave,”
whereas here, “Plaintiff alleges the exact opposite—he was asked to go, and he did.” (Id.,
citations omitted.) Moreover, the City argues that “[i]t is also well established that the
mere issuance of a citation is not a seizure.” (Id. at 8 n.5.) Ultimately, the City argues that
“[b]ecause the rangers did not attempt to physically restrain Plaintiff, nor did they exhibit
a ‘show of authority’ with which Plaintiff complied, Plaintiff was not ‘seized.’” (Id. at 8.)
And the City argues that “even if [Plaintiff’s] allegations do rise to the level of a seizure,
Plaintiff still fails to establish that being offered shelter services or being asked to leave the
park is ‘unreasonable.’” (Id.)
In response, Plaintiff argues that the City’s contention that he “was not ‘seized’
because he was ‘free to leave’ . . . misunderstands the scope of the Fourth Amendment.”
(Doc. 27 at 14.) Plaintiff argues that the City’s “argument rests on an overly narrow
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conception of seizure—one limited to arrests or physical detentions,” “[b]ut the Fourth
Amendment protects not only against confinement but against any governmental restraint
on personal liberty or freedom of movement, whether that restraint confines a person within
a space or excludes them from one.” (Id.) Plaintiff argues that when he “was ordered by
armed rangers to vacate a public park under threat of criminal penalty and told he was
‘expulsed until his court date,’” this was “a classic restraint on liberty” because “he was
not free to remain where he lawfully was.” (Id.) Moreover, Plaintiff argues that “courts
have recognized that exclusionary orders from public places implicate constitutional
liberty.” (Id. at 15.) Plaintiff also argues the City’s “enforcement regime coerces unhoused
persons to accept placement in programs or shelters under threat of citation or expulsion
from public space,” and “[c]oerced compliance under threat of punishment constitutes a
constructive seizure.” (Id. at 16.) Plaintiff then proceeds to compare the shelter programs
offered by the City to “incarceration under a work-furlough scheme.” (Id.) Last, Plaintiff
argues that the restraint on his liberty is unreasonable because “forcing individuals into
quasi-custodial programs under threat of prosecution serves no legitimate public safety
interest proportionate to the intrusion on personal liberty.” (Id. at 17.) “The Constitution,”
Plaintiff argues, “does not permit government to convert assistance into compulsion or to
equate poverty with forfeiture of liberty.” (Id.)9
In reply, the City reiterates that “Count [Two] fails because [Plaintiff] was never
seized.” (Doc. 30 at 3.) The City argues that “Plaintiff makes the extraordinary argument
that a seizure ‘encompasses any governmental action that restrains personal liberty,’” and
it argues that such an interpretation is “untenable” because it would result in “simply
enacting an ordinance” constituting a seizure. (Id.) The City argues that the “Supreme
Court has made clear that it is undesirable ‘to stretch the Fourth Amendment beyond its
9 Plaintiff encloses, as an attachment to his response brief, a news article purportedly
showing that the City’s park rangers “form[ed] a ‘Goon Squad’ that targeted and assaulted
unhoused individuals.” (Doc. 27 at 12-13; Doc. 27-1 [news article].) The Court is unable
to consider the substance of this article because it was not attached to the SAC, was not
incorporated by reference into the SAC, and is not subject to judicial notice. Ritchie, 342
F.3d at 907-08. In any event, this article does not advance Plaintiff’s Fourth Amendment
seizure claim.
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words and beyond the meaning of arrest,’” yet “[t]hat is precisely what Plaintiff urges
here.” (Id., citation omitted.) Next, the City reiterates that a seizure requires a person to
be detained or to believe he is not free to leave, whereas here, Plaintiff “affirmatively
alleges that he did leave.” (Id. at 3-4.) Last, the City rejects Plaintiff’s comparison of
shelters to “work-release, parole, or probation” because “those comparisons are obviously
distinguishable as occurring after a conviction, and perhaps more importantly, Plaintiff was
not subjected to those conditions, as he consistently rejected shelter services.” (Id.at 4 n.1.)
2. Analysis
Count Two fails to state a claim because there is no plausible allegation that the
Challenged Ordinances result in the sort of “seizure” contemplated by the Fourth
Amendment. “The ‘seizure’ of a ‘person’ can take the form of physical force or a show of
authority that in some way restrains the liberty of the person.” Puente v. City of Phoenix,
123 F.4th 1035, 1051 (9th Cir. 2024) (quoting Torres v. Madrid, 592 U.S. 306, 311 (2021)).
As an initial matter, the SAC does not allege that Plaintiff was ever subjected to
physical force. Cf. California v. Hodari D., 499 U.S. 621, 625 (1991) (“The present case
. . . does not involve the application of any physical force; Hodari was untouched by Officer
Pertoso at the time he discarded the cocaine.”).
Nor do the allegations in the SAC support a Fourth Amendment seizure claim under
a show-of-authority theory. In Puente, the Ninth Circuit affirmed the district court’s
determination “that the PPD’s dispersal of class members by the airborne transmission of
chemical irritants (such as tear gas and pepper spray) and auditory or visual irritants (such
as the sound and flash produced by flash-bang grenades) does not constitute a seizure
within the meaning of the Fourth Amendment.” 123 F.4th at 1050-51. The Ninth Circuit
held that “an application of force with an objective intent merely to disperse or exclude
persons from an area—and without any measures objectively aimed at detaining or
confining them in the process—does not involve the necessary ‘intent to restrain’ that
might give rise to a ‘seizure.’” Id. at 1052. Although the plaintiffs in Puente did “not
contend that they were seized by a ‘show of authority’ to which they submitted, but only
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that they were seized by an application of physical force with an objective intent to
restrain,” the Ninth Circuit explained that its conclusion under a physical-force theory was
“confirmed by considering what a contrary conclusion would mean” under a show-of-
authority theory. Id. at 1051-52. Relying on the Supreme Court’s opinion in Torres, the
Ninth Circuit stated:
As noted earlier, the Court in Torres confirmed that a “‘seizure’ of a ‘person’
can take the form of physical force or a show of authority that in some way
restrains the liberty of the person.” However, a “show of authority that in
some way restrains” a person does not become a seizure “unless and until the
[person] complies with the demand.” If a mere objective intent to disperse
suffices to constitute an intent to “restrain,” that would mean that a simple
instruction to leave an area or certain premises would constitute a “seizure”
if it is obeyed. And that would mean, for example, that a public librarian
who merely instructs all the patrons to leave at closing time has “seized” all
of those who comply. We are aware of no support for such an extravagant
proposition.
Id. at 1052 (cleaned up). Puente’s holding on this point is consistent with decisions from
many courts outside the Ninth Circuit confirming that a directive from an officer to leave
a location does not constitute a seizure. See, e.g., Peery v. City of Miami, 977 F.3d
1061,1071 (11th Cir. 2020) (“[P]olice move-on orders do not raise a constitutional issue.
The homeless assert the orders violate their Fourth, Fifth, and Fourteenth Amendment
rights. They are incorrect.”); Johnson v. City of Ferguson, Mo., 926 F.3d 504, 506 (8th
Cir. 2019) (finding no seizure where the complaint conceded that the plaintiff was not
“ordered to stop and to remain in place” and explaining that “[b]ecause there was no verbal
or physical impediment to [the plaintiff’s] freedom of movement, there was no submission
to authority on his part even in a metaphysical sense of the meaning of that word”); Salmon
v. Blesser, 802 F.3d 249, 253 (2d Cir. 2015) (“Police officers frequently order persons to
leave public areas: crime scenes, accident sites, dangerous construction venues, anticipated
flood or fire paths, parade routes, areas of public disorder, etc. A person may feel obliged
to obey such an order. Indeed, police may take a person by the elbow or employ
comparable guiding force short of actual restraint to ensure obedience with a departure
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order. Our precedent does not view such police conduct, without more, as a seizure under
the Fourth Amendment as long as the person is otherwise free to go where he wishes.”);
Bach v. Milwaukee Cnty. Cir. Ct., 565 F. App’x 531, 534 (7th Cir. 2014) (“[Plaintiff]
maintains that she was seized in a public park because she believed that [the officer] would
have used force to arrest her if she failed to leave. But, as the magistrate judge concluded,
[the plaintiff’s] own allegations show that [the officer] required her only to leave the park;
he did not try to take her into custody, handcuff her, or apply physical force. A reasonable
person therefore would have felt free to leave, as [the plaintiff] herself did.”).
The Sixth Circuit’s decision in Youkhanna v. City of Sterling Heights, 934 F.3d 508
(6th Cir. 2019), is also instructive. There, the plaintiff was removed from a council meeting
by police but was “not otherwise detained.” Id. at 522-23. The plaintiff argued that “she
was seized the moment that Mayor Taylor ordered her out of the Council chambers,” but
the Sixth Circuit disagreed. Id. at 523. Relying on the Second Circuit’s decision in Salmon,
the Sixth Circuit noted that “the Supreme Court has recognized [that] the ‘free to leave’
test may not be the best measure of a seizure where a person has no desire to leave the
location of a challenged police encounter.’” Id. (quoting Salmon, 802 F.3d at 253). The
Sixth Circuit acknowledged that the Supreme Court in Florida v. Bostick, 501 U.S. 429
(1991), held that “‘whether a reasonable person would feel free to decline the officers’
requests or otherwise terminate the encounter’ was an appropriate test to determine whether
a seizure occurred when someone was asked for consent to search his bag while on a bus
that he did not want to exit.” Id. (quoting Bostick, 501 U.S. at 436). But the Sixth Circuit
found Bostick inapplicable because the officers in Youkhanna “were not asking [the
plaintiff] for consent or engaging in a voluntary interaction with her; rather, they were
ordering her to leave a place she wanted to be.” Id. The Sixth Circuit noted that the
“Second Circuit addressed a similar situation in Salmon” and held that when officers “order
persons to leave public areas . . . such police conduct, without more, [is not] a seizure under
the Fourth Amendment as long as the person is otherwise free to go where he wishes.” Id.
(quoting Salmon, 802 F.3d at 253). The Sixth Circuit ultimately held as follows:
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We are inclined to agree with the Second Circuit, at least in circumstances
where the person being asked to leave is not privileged to remain in the
space—either because the space is no longer open to the public (for example,
a building is closing or the space must be cleared of all people for safety
reasons) or because the person’s behavior violated a rule, ordinance, or law
(for example, by causing a disturbance). Here, [the plaintiff] lost her
privilege to remain in the otherwise-public meeting.
. . .
[The plaintiff] lost her privilege to remain in the public meeting because of
her behavior. Her description of the force used by officers to escort her out—
holding her hand or arm, tapping her—does not exceed guiding force,
especially in light of her mid-exit refusal to leave the Council chambers.
There was certainly no painful force, and [the plaintiff’s] freedom was
unrestricted once she exited the building. Because there was no seizure, [the
plaintiff’s] Fourth Amendment rights were not violated, and summary
judgment in favor of defendants was appropriate.
Id. at 523-24 (citation omitted). Here, the SAC alleges that during each encounter with
park rangers, Plaintiff was given three options: (1) accept shelter, mental health, and/or
rehabilitation services; (2) receive a citation for violating the Challenged Ordinances; or
(3) face arrest or expulsion/banishment from the public space. (Doc. 15 ¶ 27.) As the
above-cited authorities make clear, the presentation of such options by a law enforcement
officer does not amount to a seizure.
The three encounters with park rangers identified in the SAC also fail to allege a
seizure under a show-of-authority theory for other reasons. As for the first encounter, the
SAC alleges that “Plaintiff was approached by two armed rangers while sleeping in a park,”
who told him he had to remain upright in the park. (Doc. 15 ¶ 34.) The rangers offered
Plaintiff services, which he declined. (Id.) The rangers then warned Plaintiff that if they
saw him lying down again, he would get a ticket. (Id.) “After the rangers left, Plaintiff left
the park . . . .” (Id.) As an initial matter, these allegations leave open the question whether
Plaintiff disobeyed the rangers’ commands. Hodari, 499 U.S. at 629 (no seizure under
show-of-authority theory if the person does not comply). Regardless, nothing about this
encounter suggests there was any “restraint” placed on Plaintiff. Plaintiff alleges he left
the park after the rangers left. True, Plaintiff alleges that the alternative to compliance with
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the rangers’ commands was a ticket, but “[n]umerous courts have held that the mere
issuance of a citation does not even constitute a seizure, let alone a formal arrest.” White
v. City of Laguna Beach, 679 F. Supp. 2d 1143, 1155 (C.D. Cal. 2010) (collecting cases).
Cf. Gutenkauf v. City of Tempe, 2011 WL 1672065, *2 (D. Ariz. 2011) (“A traffic citation
is not a seizure under the Fourth Amendment.”).
As for the second encounter, the SAC alleges that “Plaintiff was approached by two
armed park rangers who accused him of violating [MCC] § 6-10-4(V) by allegedly ‘storing
personal belongings’ in the park due to the presence of his backpacks.” (Doc. 15 ¶ 36.)
“During this interaction, the park rangers explicitly threatened to issue a citation if Plaintiff
did not comply with their directive to reduce the number of bags he was carrying.” (Id.
¶ 37.) In response to one ranger’s “warn[ing] that if Plaintiff did not comply, he would be
banished from the park and/or cited under MCC 6-10-4(V) for the number of bags he had,”
“Plaintiff had no real choice but to comply.” (Id. ¶ 42.) As with the previous encounter,
there was no “restraint” placed on Plaintiff. In essence, Plaintiff was told to consolidate
his belongings, otherwise he would receive a citation (which does not constitute a seizure
under White) or be ordered to leave the park (which does not constitute a seizure under
Puente, Youkhanna, and Salmon). This encounter, too, does not constitute a seizure.
As for the third encounter, the SAC alleges that Plaintiff was again approached by
park rangers and “instructed . . . to consolidate his bags.” (Doc. 15 ¶ 44-45.) After Plaintiff
“stood firm in asserting his right to retain his belongings as he saw fit, . . . the ranger issued
Plaintiff a criminal citation for alleged ‘urban camping’ under MCC § 6-10-4(V).” (Id.
¶ 48.) But as noted, a citation is not a seizure for Fourth Amendment purposes. The SAC
then alleges that, after Plaintiff received the citation, “he was . . . expulsed from the park
and could not return until after his scheduled court date.” (Id. ¶ 49.) But per Puente,
Youkhanna, and Salmon, a person who is ordered to leave a public space after violating the
law is not “seized” under the Fourth Amendment (at least absent evidence of any physical
force used to restrain the person).
Plaintiff’s counterarguments are unavailing. Plaintiff disputes the City’s reliance
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on Doscher v. City of Tumwater, 2022 WL 3867365 (W.D. Wash. 2022), aff’d sub. nom.,
Doscher v. Timberland Reg’l Libr., 2024 WL 3508048 (9th Cir. 2024). There, the court
held that “Doscher was not seized by being pressured to leave the Library” because “[h]e
not only was free to leave; he was encouraged to leave.” Id. at *5. The court explained
that Doscher’s “freedom of movement was limited in the sense that he felt he could not
stay at the Library, but he was never detained. Ultimately, he used his freedom of
movement to leave without incident.” Id. Plaintiff argues Doscher is distinguishable
because there, unlike here, “the plaintiff had no continuing prohibition against reentry and
no threat of sanction.” (Doc. 27 at 15.) But Plaintiff ignores that the plaintiff in Doscher
was “banned from the Library for the rest of the day.” 2022 WL 3867365 at *4.
Additionally, the plaintiff in Doscher was threatened with a “trespass warning notice.” Id.
The Court is also unpersuaded by Plaintiff’s reliance on Catron v. City of St. Petersburg,
658 F.3d 1260 (11th Cir. 2011), as Catron does not address seizures under the Fourth
Amendment. Finally, there is no merit to Plaintiff’s argument that “coercion into shelters
and programs constitutes a seizure.” (Id. at 15-16, cleaned up.) As the City notes in its
reply (Doc. 30 at 4 n.1), Plaintiff never accepted the shelter services offered to him.
Moreover, Plaintiff acknowledges that shelter was simply one of multiple options provided
to him.
For these reasons, Count Two is dismissed.
D. Count Three
In Count Three, Plaintiff alleges that the Challenged Ordinances violate his
Fourteenth Amendment substantive due process right to intrastate travel, under a theory of
“constructive banishment.” (Doc. 15 ¶¶ 65-72.)
1. The Parties’ Arguments
The City argues that the right to intrastate travel “is not recognized in this Circuit,
and no court has recognized Plaintiff’s novel theory of ‘constructive banishment.’” (Doc.
25 at 9.) The City acknowledges that “[s]ome circuits, such as the Sixth Circuit, indeed
recognize” a right to intrastate travel but contends that “the Ninth Circuit does not, and
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district courts within the Ninth Circuit have declined to expand the reaches of substantive
due process protections on their own.” (Id.) Alternatively, the City argues that the
Challenged Ordinances “do not prohibit travelling” and instead “prohibit camping—the
establishment of living accommodations.” (Id.) Thus, the City argues that “even if this
Circuit recognized a right to intrastate travel, that right is not disturbed by” the Challenged
Ordinances. (Id. at 10.) As for Plaintiff’s “constructive banishment” theory, the City
argues that “no court anywhere has recognized a claim for constructive banishment. And
regardless, the ordinances at issue do not ‘banish’ or ‘cast out’ the homeless population,
particularly because the City invites the homeless to accept shelter services, mental health
treatment, and rehabilitation programs.” (Id.)
In response, Plaintiff argues that the “Ninth Circuit has not foreclosed” the right to
intrastate travel and relies on Nunez by Nunez v. City of San Diego, 114 F.3d 935 (9th Cir.
1997), to argue that the Ninth Circuit “recogniz[es] intrastate travel as a liberty interest.”
(Doc. 27 at 6.) Plaintiff contends that “[b]y threatening citations against individuals resting
or possessing belongings in public parks, [the City’s] enforcement unreasonably restricts
that liberty.” (Id.) Next, relying on Catron, Plaintiff argues that “[c]ourts have also held
that the right to exist in public spaces is a liberty interest” and that people “have a
constitutionally protected liberty interest to be in parks or on other city lands of their
choosing that are open to the public generally.” (Id.) In support of his “constructive
banishment” theory, Plaintiff argues that “[w]hile few courts have addressed the term
directly, its principle aligns with Aitken v. City of Aberdeen, 393 F. Supp. 3d 1075, 1084
(W.D. Wash. 2019), which held that expelling unhoused residents from all public property
raises serious constitutionality concerns.” (Id. at 7.) Plaintiff encourages the Court to
“create precedent” adopting this constructive banishment theory. (Id.) Next, Plaintiff
disputes that the Challenged Ordinances only regulate “camping,” arguing that he “has
never camped, lived, or established any form of dwelling within the City of Mesa.” (Id.)
Plaintiff also argues that the City’s “reliance on its offer of ‘shelter services’ cannot cure
the constitutional violation” and that “[f]orcing travelers or unhoused persons into shelters
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with curfews, restricted liberty, and mandatory programming is not a constitutionally
permissible substitute for freedom of movement.” (Id. at 9.) Last, Plaintiff argues that he
is not seeking a “right to living accommodations” and instead is asserting a “right to exist,
rest, and move through public spaces without being criminalized for appearing poor or
carrying belongings.” (Id.)
In reply, the City reiterates that “the Ninth Circuit does not recognize a fundamental
right to intrastate travel.” (Doc. 30 at 4.) The City also reiterates that “even if Plaintiff is
correct that the Ninth Circuit has not foreclosed the possibility that the Constitution
guarantees the right to intrastate travel, Plaintiff has not been deprived of the ability to
travel, nor do the [Challenged] [O]rdinances deny anyone that ability.” (Id.) The City next
argues that Aitken is distinguishable because it “simply granted a temporary restraining
order” and because the decision rested, at least in part, on the fact that city-defendant
admitted it lacked sufficient shelter space—whereas here, “Plaintiff makes no similar
allegation.” (Id. at 5.)
2. Analysis
As noted, substantive due process claims “require, as a threshold matter, that
plaintiffs show they were deprived of a ‘constitutionally protected life, liberty or property
interest.’” Hotop, 982 F.3d at 718 (citation omitted). Furthermore, “matters relating to
marriage, family, procreation, and the right to bodily integrity . . . likely represent the outer
bounds of substantive due process protection.” Nunez, 147 F.3d at 871 n.4 (internal
quotation and citation omitted). The alleged rights underlying Count Three—the right to
intrastate travel and the right to be free from “constructive banishment” (Doc. 15 ¶¶ 67,
70)—have nothing to do with marriage, family, procreation, or bodily integrity.10
Nor are these alleged rights “objectively, deeply rooted in this Nation’s history and
tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice
10 Count Three also alleges that “the threat of criminal citation or forced removal for
merely sleeping or resting in public constitutes an unconstitutional constructive seizure,
coercing individuals into either relocating, complying with unwanted programs, or facing
punishment.” (Doc. 15 ¶ 71.) This argument, premised on sleep, is without merit for the
reasons discussed in relation to Count One.
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would exist if [they were] sacrificed.” Regino, 133 F.4th at 965 (cleaned up). Neither the
Supreme Court nor the Ninth Circuit has recognized a Fourteenth Amendment right to
intrastate travel. Nunez, 114 F.3d at 944 n.7 (“Other circuit courts are split as to whether
the Constitution guarantees the fundamental right of intrastate travel. The Supreme Court
has declined to decide the issue. We need not decide the issue in order to resolve this
appeal, so we express no opinion on it.”) (citations omitted). Several district courts within
the Ninth Circuit have declined to recognize such a right. See, e.g., Matsumoto v.
Labrador, 701 F. Supp. 3d 1069, 1079 (D. Idaho 2023) (“Plaintiffs ask this Court to
recognize the right to intrastate travel or freedom of movement as a fundamental right, and
to find that Idaho Code Section 18-623 unconstitutionally infringes upon that right. The
Court respectfully declines Plaintiffs’ invitation.”); Navarro, 2021 WL 5205598 at *6 n.2
(“The Court’s research presented substantial support for interstate travel as a fundamental
right, but nothing for intrastate travel.”); Abshire v. Newsom, 2021 WL 3418678, *5 (E.D.
Cal. 2021), aff’d, 2023 WL 3243999 (9th Cir. 2023) (“[N]either the Supreme Court nor the
Ninth Circuit has recognized a constitutional right to intrastate travel.”); Disbar Corp. v.
Newsom, 508 F. Supp. 3d 747, 753 (E.D. Cal. 2020) (“Plaintiffs fail to persuade the Court
that a due process liberty interest is at stake. Plaintiffs argue they have a fundamental right
‘to be out and about in public.’ However, Defendants correctly point out that the Ninth
Circuit has declined to rule on whether the Constitution guarantees the right of intrastate
travel.”) (cleaned up); Raiser v. City of Murrieta, 2020 WL 4758563, *6 (C.D. Cal. 2020),
report and recommendation adopted, 2020 WL 3971370 (C.D. Cal. 2020) (“Raiser alleges
a violation of his right to intrastate travel. However, there is no recognized fundamental
right to intrastate travel.”). The Court agrees with these authorities and respectfully
declines to follow the out-of-circuit authorities cited by Plaintiff. Matsumoto, 701 F. Supp.
3d at 1079 (“Courts are cautioned to ‘exercise the utmost care’ when asked to expand the
substantive due process liberty protections. . . . While the Court does not find Plaintiffs’
intrastate travel claim is brought in bad faith or frivolous given the caselaw from other
Circuits, there is simply no authority in this Circuit at this time upon which to recognize a
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liberty interest in the right to intrastate travel, let alone a fundamental right.”) (citation
omitted); Hammel v. Tri-Cnty. Metro. Transp. Dist. of Oregon, 955 F. Supp. 2d 1205, 1210
(D. Or. 2013) (acknowledging a split on the issue but finding “it highly improbable that
the Ninth Circuit would recognize a fundamental right to intrastate travel absent some form
of absolute or intentional interference”).
Moreover, the SAC does not plausibly allege that the Challenged Ordinances violate
any hypothetical right to intrastate travel. In reality, Plaintiff is attempting to assert a right
to be and remain in City parks and on City property on his own terms. Cf. Navarro, 2021
WL 5205598 at *6 (“Plaintiffs argue that the Ordinances deter their travel by ‘making it
difficult if not impossible for them to be anywhere in the City.’ It is unclear how ‘travel’
is implicated when Plaintiffs frame the allegation using a different verb: ‘be.’ Does the
right to travel encompass the right to be? It does not appear so from the caselaw. . . . As
alleged, the complaint does not state a plausible claim for violations of the right to travel.”);
Davison v. City of Tucson, 924 F. Supp. 989, 993 (D. Ariz. 1996) (concluding that “the
fundamental right to interstate travel [was] not implicated” in a case challenging the
constitutionality of a resolution forcing out those in a homeless encampment, because the
plaintiffs “do not seek to travel anywhere; they seek only to remain”).
Plaintiff’s novel “constructive banishment” theory fares no better. In support of this
theory, Plaintiff cites Aitken, which partially granted temporary injunctive relief in relation
to a municipal anti-camping ordinance, observed that “there is some inherent force to the
argument that a City cannot effectively cast out its homeless population,” and held that
“because the City’s ordinances do encompass all public property and it remains unclear
where River Camp’s evictees will relocate, the Court is presently unwilling to hold that
Plaintiffs’ right to travel claim is destined to fail.” Aitken, 393 F. Supp. 3d at 1084-85.
Aitken is distinguishable here for several reasons. First, Aitken addressed a motion for a
temporary restraining order, where the standard is merely whether a plaintiff is likely to
succeed on the merits. Second, as the City notes (Doc. 30 at 5), the court granted the Aitken
plaintiffs’ request for temporary relief at least in part because it remained unclear where
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the homeless encampment’s evictees would relocate. Indeed, in Aitken, the defendant-city
“acknowledge[d] that there is currently insufficient shelter for Aberdeen’s homeless at all
times.” 393 F. Supp. 3d at 1080. In contrast, there are no allegations in the SAC that the
City lacks sufficient shelter space. To the contrary, the SAC affirmatively alleges that, on
several occasions, available shelter services were offered to Plaintiff (Doc. 15 ¶¶ 34, 35,
46) but Plaintiff refused them. Third, although the court in Aitken presupposed for
purposes of its TRO analysis as of 2019 that there may be a substantive due process right
to intrastate travel, Aitken, 393 F. Supp. 3d at 1085 (“[T]he Court is presently unwilling to
hold that Plaintiffs’ right to travel claim is destined to fail.”), the issue is more squarely
presented here and, as discussed above, the Court cannot see how the existence of such a
right can be squared with intervening Ninth Circuit and Supreme Court precedent on the
issue of substantive due process.11
Finally, the Court rejects Plaintiff’s invitation to break new ground and recognize
new substantive due process rights. (Doc. 27 at 7 [“[A] court’s function is not only to
follow precedent, but to create precedent.”].) As the Supreme Court recently emphasized,
“[i]n interpreting what is meant by the Fourteenth Amendment’s reference to ‘liberty,’ we
must guard against the natural human tendency to confuse what that Amendment protects
with our own ardent views about the liberty that Americans should enjoy. . . . Substantive
due process has at times been a treacherous field . . . and it has sometimes led [courts] to
usurp authority that the Constitution entrusts to the people’s elected representatives. . . .
[W]e must . . . exercise the utmost care whenever we are asked to break new ground in this
field, lest the liberty protected by the Due Process Clause be subtly transformed into the
policy preferences of the [judiciary].” Dobbs, 597 U.S. at 239-40 (cleaned up).
For these reasons, Count Three is dismissed.
…
11 For similar reasons, Plaintiff’s reliance on Pottinger v. City of Miami, 810 F. Supp.
1551 (S.D. Fla. 1992), is misplaced. There, the court stated that “[g]iven the vast number
of homeless individuals and the disproportionate lack of shelter space, the plaintiffs truly
have no place to go.” Id. at 1580. In contrast, the SAC affirmatively alleges that shelter
services were both available and offered to Plaintiff and that he simply refused those offers.
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E. Count Four
In Count Four, Plaintiff alleges that the Challenged Ordinances violate his right to
procedural due process under the Fourteenth Amendment. (Doc. 15 ¶¶ 73-80.)
1. The Parties’ Arguments
The City argues that “[j]ust as in a substantive due process claim, a procedural due
process claim cannot survive without a showing that the plaintiff was deprived of a
constitutionally protected right” and “Plaintiff has failed to identify such an interest here.”
(Doc. 25 at 11.) The City argues that Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir.
2002), cited by Plaintiff, “remains inapplicable here” because it relies on the right to
intrastate travel. (Doc. 25 at 11.) The City further argues that “Plaintiff’s allegations
demonstrate that the City affords due process to those who violate the ordinances” and that
the citation with a hearing date issued to Plaintiff “provides notice of an opportunity to be
heard; that is due process.” (Id.)
In response, Plaintiff clarifies that his procedural due process claim is premised on
his “allegations that he was expelled from parks immediately—without notice or hearing—
for approximately a month before his scheduled court date.” (Doc. 27 at 13.) Plaintiff
argues that “[t]emporary expulsions from public spaces without any notice or hearing are
constitutionally insufficient.” (Id.)
In reply, the City reiterates that “Plaintiff has failed to identify a protected interest
of which he was deprived without due process.” (Doc. 30 at 6.) First, the City argues that
the Challenged Ordinances “do not prohibit anyone from simply being in a park.” (Id.)
Second, the City argues that, under Catron, “a person may forfeit” any “protected liberty
interest to be in a public park” by “violation of law.” (Id.) Third, the City argues that
although Plaintiff was “informed . . . that he was being expulsed from the park,” “he does
not allege that he was actually forced to leave, that he left, or that such an expulsion was
enforced in any way.” (Id.) Last, the City reiterates that the citation plaintiff received,
“which set a court date,” “was the notice and opportunity to be heard that is required by
the Constitution.” (Id. at 7.)
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2. Analysis
In his response brief, Plaintiff clarifies that his procedural due process claim in
Count Four is premised on his alleged temporary expulsion from the park after he received
a citation for violating the Challenged Ordinances. (Doc. 27 at 13. See also Doc. 15 ¶ 49.)
Accordingly, the narrow question presented here is whether that alleged expulsion pending
Plaintiff’s court date constitutes a procedural due process violation.
“A procedural due process claim has two distinct elements: (1) a deprivation of a
constitutionally protected liberty or property interest, and (2) a denial of adequate
procedural protections.” Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 931 (9th Cir. 2017)
(citation omitted). “To state a prima facie . . . procedural due process claim, one must, as
a threshold matter, identify a liberty or property interest protected by the Constitution.”
United States v. Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014).
Plaintiff fails to meet that threshold requirement because he has not alleged a
constitutionally protected liberty interest of which he was deprived. In his response brief,
Plaintiff identifies his “liberty to access public spaces” as the interest of which he was
deprived. (Doc. 27 at 13.) True, at least one court has recognized that “[p]laintiffs have a
constitutionally protected liberty interest to be in parks or on other city lands of their
choosing that are open to the public generally.” Catron, 658 F.3d at 1266. But that right,
“of course, is not absolute.” Id. at 1267 n.5. There is no “constitutional right to use public
parks under all conditions and at all times.” Id. “[A] person may forfeit this liberty right
by trespass or other violation of law.” Id. at 1266. See also Sheets v. City of Punta Gorda,
Fla., 415 F. Supp. 3d 1115, 1127-28 (M.D. Fla. 2019) (“[I]f a person forfeits the liberty
interest, then there has been no deprivation.”). The SAC alleges that Plaintiff was first
“issued . . . a criminal citation for alleged ‘urban camping’ under MCC § 6-10-4(V)” and
“was then informed by the ranger that he was being expulsed from the park and could not
return until after his scheduled court date.” (Doc. 15 ¶¶ 48-49, emphasis added.) By
violating the Challenged Ordinances, Plaintiff forfeited any constitutionally protected
liberty interest he may have had to be in the park and thus fails to allege a deprivation
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premised on his subsequent, temporary expulsion from the park. Cf. Sheets, 415 F. Supp.
3d at 1127-28.
Accordingly, Count Four is dismissed.12
F. Count Five
In Count Five, Plaintiff alleges that the Challenged Ordinances are
unconstitutionally vague. (Doc. 15 ¶¶ 81-96.)
1. The Parties’ Arguments
The City argues that the Challenged Ordinances are not unconstitutionally vague.
(Doc. 25 at 12-15.) First, the City argues that the fact that “certain phrases in isolation . . .
are undefined by the Code . . . alone is insufficient to invalidate a law.” (Id. at 13.) The
City argues that the Challenged Ordinances “do provide statutory definitions and
narrowing context,” including “by specifically listing many ‘indications of camping.’”
(Id.) Thus, the City argues that “the ordinances are not vague, even if it may be difficult
to determine whether marginal offenses fall within their scope.” (Id.) Second, the City
argues that Plaintiff’s reliance on an “arbitrary enforcement theory” fails. (Id. at 14.) The
City again emphasizes the presence of the “indications of camping” in the Challenged
Ordinances’ “camping” definitions, as well as the presence of “a clause demanding
consideration of ‘all the circumstances,” which the City argues “establish minimal
guidelines to govern law enforcement.” (Id., citation omitted.) Moreover, the City argues
that “even if it is conceivable that the homeless will be disproportionately cited under [the
Challenged Ordinances] (though Plaintiff does not specifically allege that), it remains
‘entirely reasonable to conclude that homeless persons would be more likely to engage in
the type of conduct prohibited by the [Challenged Ordinances] and would therefore
constitute the majority of people [cited] for violating its provisions.’” (Id. at 14, quoting
Joel, 232 F.3d at 1360 n.5). Last, citing several cases from other jurisdictions, the City
12 This conclusion makes it unnecessary to address the three-part balancing test in
Mathews v. Eldridge, 424 U.S. 319 (1976), which is only used to determine what process
is due once a plaintiff has made a threshold showing of a deprivation of a constitutional
interest.
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argues that “[a]cross the nation, plaintiffs have brought challenges to similar laws under
both vagueness theories, and courts have consistently rejected those arguments and upheld
the ordinances.” (Id. at 14-15.)
In response, Plaintiff first argues that several of the cases cited by the City are
distinguishable because they “examined whether citing or arresting an unhoused person for
sleeping outdoors constituted cruel and unusual punishment when no shelter was
available.” (Doc. 27 at 3-4.) Plaintiff also argues that the City’s reliance on United States
v. Thomas, 864 F.2d 188 (D.C. Cir. 1988), is misplaced because Thomas “did not address
the mens rea issue or consider whether the ordinance violated liberty or equal protection.”
(Id. at 5.) Plaintiff also seeks to distinguish Thomas on the ground that the City’s “rangers
and police routinely enforce the [Challenged Ordinances] based on a single indicator—like
resting, having bedding, or holding personal property—and have done so exclusively
against individuals perceived as unhoused.” (Id. at 10.) Plaintiff further seeks to
distinguish Thomas on the ground that “Thomas involved limited parkland regulations
under federal jurisdiction,” whereas the Challenged Ordinances “cover all parks,
sidewalks, and public spaces citywide.” (Id.) Plaintiff next responds to the City’s
argument that the “indicating of camping” provide guidance to law enforcement, arguing
that “[i]n practice, the opposite is true” because “Plaintiff was cited and threatened solely
for possessing backpacks while resting in a public park.” (Id. at 9.) Plaintiff also argues
that “the [C]hallenged [O]rdinances expressly criminalize conduct ‘regardless of intent’”
and that the City “has not addressed or refuted that argument.” (Id. at 11-12.) Plaintiff
argues that “the absence of a mens rea requirement” in the Challenged Ordinances
“compounds vagueness and invites arbitrary enforcement.” (Id. at 12.)
In reply, the City reiterates that the Challenged Ordinances are not
unconstitutionally vague under any of the theories presented by Plaintiff. (Doc. 30 at 7-9.)
First, the City argues that even if “certain words in the ordinances are undefined,”
“mathematical precision is not required” and “the ordinances give definitions and
narrowing context.” (Id. at 7.) Second, the City argues that the Challenged Ordinances do
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not encourage arbitrary and discriminatory enforcement because they instruct law
enforcement “which factors to consider in evaluating the totality of the circumstances.”
(Id. at 8.) Third, as for the lack of a mens rea requirement, the City argues that “the
Constitution does not require a knowingly criminal mind in order that an act be punished
as criminal.” (Id., cleaned up.) Last, responding to Plaintiff’s attempts to distinguish
Thomas, the City argues that “Thomas . . . remains a good example of why the Court should
reject Plaintiff’s vagueness challenge” because “[t]he ordinance at issue in Thomas was
similar to the ones at play here” and because “Thomas is just one of many cases upholding
anti-camping laws against vagueness challenges.” (Id. at 9.)
2. Analysis
“Vagueness may invalidate a criminal law for either of two independent reasons.
First, it may fail to provide the kind of notice that will enable ordinary people to understand
what conduct it prohibits; second, it may authorize and even encourage arbitrary and
discriminatory enforcement.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1155 (9th
Cir. 2014) (citation omitted). The Challenged Ordinances are not unconstitutionally vague
for either of those reasons.
In Thomas, the plaintiffs challenged a regulation that prohibited camping in areas
such as Lafayette Park. 864 F.2d at 190.13 In language nearly identical to MCC §§ 6-10-
2’s and 6-1-23’s definitions of “camping,” the challenged regulation’s definition of
“camping” also “list[ed] several indicia of ‘camping’”:
Camping is defined as the use of park land for living accommodation
purposes such as sleeping activities, or making preparations to sleep
(including the laying down of bedding for the purpose of sleeping), or storing
personal belongings, or making any fire, or using any tents or shelter or other
structure or vehicle for sleeping or doing any digging or earth breaking or
carrying on cooking activities. The above-listed activities constitute
camping when it reasonably appears, in light of all the circumstances, that
the participants, in conducting these activities, are in fact using the area as a
living accommodation regardless of the intent of the participants or the nature
13 The plaintiffs in Thomas were not involuntarily homeless—they had “access to and
use of a nearby apartment” but chose not to sleep there. Id. at 190.
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of any other activities in which they may also be engaging . . . .
Id. (quoting 36 C.F.R. § 7.96(i)(1) (1988)). The D.C. Circuit held that “the anti-camping
regulation was not unconstitutionally vague.” Id. at 196. Largely relying on the presence
of the “indicia” of camping in the regulation’s definition of “camping,” the D.C. Circuit
held that those indicia “indicate what is meant by ‘use of park land for living
accommodation purposes.’” Id. at 197. Here, the Challenged Ordinances supply similar
indicia. The D.C. Circuit also emphasized that language within the regulation providing
that “[t]he above-listed activities constitute camping when it reasonably appears, in light
of all the circumstances, that the participants, in conducting these activities, are in fact
using the area as a living accommodation” supplied relevant “context, and a contextual
evaluation of many of the listed factors, determines the scope of the regulation.” Id. The
Challenged Ordinances use nearly identical contextual language.
The D.C. Circuit also held that “nothing in the terms of the regulation implicitly
confers undue discretion upon Park Service officials.” Id. at 199. “While officers on the
enforcement front-lines are left with some ordinary discretion over what falls within the
enactment, they nonetheless must justify their action by the terms of the regulation. . . .
[T]he concept of camping, once defined as ‘use of park land for living accommodation
purposes,’ in turn elucidated by specific indicia of that use, describes reasonably precise
boundaries of the prohibited behavior. Those concepts, definitions, and indicia similarly
contain and channel officials’ enforcement discretion for purposes of the values secured by
the Due Process Clause.” Id. (citation omitted.) Here, too, because the Challenged
Ordinances supply indicia of camping and other contextual information, they properly
constrain the discretion of the City’s enforcement officials.
Plaintiff’s attempts to distinguish Thomas lack merit. For example, Plaintiff is
simply incorrect that Thomas “did not consider the absence of a mens rea requirement.”
(Doc. 27 at 10.) In fact, Thomas acknowledged that the regulation—just like the
Challenged Ordinances—provided that “[t]he above-listed activities constitute camping
. . . regardless of the intent of the participants or the nature of any other activities in which
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they may also be engaging.” Thomas, 864 F.2d at 197 (emphasis added). The D.C. Circuit
specifically pointed to this language as another reason why the regulation was not vague:
“Lest any citizen unreasonably believe that the listed activities for some reason are not
‘camping’ when pursued for nobler ends, the regulation seeks to put them, too, on clear
notice as to its scope.” Id. Regardless, “[t]he Constitution does not require a knowingly
criminal mind in order that an act be punished as criminal.” United States v. Hoyland, 914
F.2d 1125, 1128 (9th Cir. 1990). Plaintiff is also incorrect that Thomas only applied to
Lafayette Park, whereas the Challenged Ordinances “cover all parks, sidewalks, and public
spaces citywide.” (Doc. 27 at 10.) In fact, the regulation at issue in Thomas forbade
“‘camping’ in areas including Lafayette Park.” 864 F.2d at 190 (emphasis added). See
also 36 C.F.R. § 7.96 (“National Capital Region”).
As another example, in Joel, the plaintiff, a homeless man, challenged an Orlando
ordinance that “prohibit[ed] ‘camping’ on public property.” 232 F.3d at 1355. The
Orlando ordinance defined “camping” as “(a) Sleeping or otherwise being in a temporary
shelter out-of-doors; or (b) Sleeping out-of-doors; or (c) Cooking over an open flame or
fire out-of-doors.” Id. at 1356. Furthermore, Orlando “promulgated a handbook,” called
the MUCOB, that clarified that sleeping was not enough to constitute a violation; rather,
there had to “be some indication of actual camping”—and the MUCOB proceed to outline
certain indicia of “camping.” Id. Among other things, the plaintiff challenged the Orlando
ordinance on the grounds that that it was “impermissibly vague” and that its vagueness
“has led to arbitrary application of it by [Orlando] police officers.” Id. at 1359. The
Eleventh Circuit disagreed, concluding that the Orlando ordinance—when “read in
context,” particularly in light of the indicia of camping in the MUCOB—was “sufficiently
specific that a person of ordinary intelligence could reasonably understand the conduct that
is prohibited.” Id. at 1360. The court also held that the Orlando ordinance did not
“encourage arbitrary and discriminatory enforcement.” Id. Pointing again to the guidelines
in the MUCOB setting forth certain indicia of “camping,” the court held that “[t]hose
guidelines substantially decrease the likelihood that [the Orlando ordinance] will be subject
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to arbitrary and discriminatory enforcement.” Id. Here, too, the Challenged Ordinances
do not prohibit sleeping under any circumstances and require that there be some indication,
other than sleeping itself, that the person is “using the area for the purpose of living
accommodations.” MCC §§ 6-1-23(B), 6-10-2. And as noted, the Challenged Ordinances
also provide several indicia of camping.
The court in Joel also held that “[t]he fact that the vast majority of people arrested
for violating the ordinance are homeless does not, by itself, show that City police officers
discriminate against homeless persons in enforcement of the ordinance” because “[i]t
seems entirely reasonable to conclude that homeless persons would be more likely to
engage in the type of conduct prohibited by the ordinance and would therefore constitute
the majority of people arrested for violating its provisions.” Id. at 1360 n.5. Accordingly,
the SAC’s conclusory allegations that the Challenged Ordinances “facilitate[]
discriminatory enforcement against vulnerable populations, including the homeless” and
“disproportionately impact[] individuals without permanent housing” (Doc. 15 ¶¶ 89, 94)
do not, on their own, establish that the Challenged Ordinances encourage arbitrary and
discriminatory enforcement.
As yet another example, in Bell v. City of Boise, 834 F. Supp. 2d 1103 (D. Idaho
2011), rev’d on other grounds, 709 F.3d 890 (9th Cir. 2013), the plaintiffs, “all currently
or formerly homeless individuals residing in Boise,” alleged that the defendants “enforce
Boise City ordinances against camping and sleeping in public to force the homeless of out
Boise.” Id. at 1105. Similar to the Challenged Ordinances, the Boise ordinance made “it
a crime for any person ‘to use any of the streets, sidewalks, parks or public places as a
camping place at any time’” and further defined “camping” with reference to certain
“[i]ndicia,” including “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 one
another or in combination with either sleeping or making preparations to sleep (including
the laying down of bedding for the purpose of sleeping).” Id. Among other things, the
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plaintiffs challenged the Boise ordinance as “unconstitutionally vague,” but the court
disagreed, holding that the presence of “indicia of camping” in the ordinance’s definition
of “camping” was “adequate to put the public on notice of what conduct is prohibited.” Id.
at 1114-15. The court further held that the Boise ordinance was “not so vague as to
encourage discriminatory enforcement,” even though “the homeless are more likely than
those with housing to be present in public places with their belongings.” Id.14
Of course, the above-cited authorities are persuasive but not binding here. The
closest binding authority the Court has located is Desertrain, 754 F.3d 1147. There, the
plaintiffs were “four homeless individuals” who challenged a Los Angeles ordinance that
provided: “No person shall use a vehicle parked or standing upon any City street, or upon
any parking lot owned by the City of Los Angeles and under the control of the City of Los
Angeles or under the control of the Los Angeles County Department of Beaches and
Harbors, as living quarters either overnight, day-by-day, or otherwise.” Id. at 1149
(emphasis added). The Ninth Circuit held that this ordinance failed “to provide adequate
notice of the conduct it criminalizes” because it failed to define what it meant to use a
vehicle as “living quarters” and failed to specify “how long—or when—is ‘otherwise.’”
Id. at 1155. The Ninth Circuit also held that this ordinance was unconstitutionally vague
because it encouraged arbitrary or discriminatory enforcement by “pav[ing] the way for
law enforcement to target the homeless.” Id. at 1157. The court acknowledged that officers
were “instructed” verbally and in informal memoranda “to look for vehicles containing
possessions normally found in a home, such as food, bedding, clothing, medicine, and basic
necessities” but emphasized that despite those instructions, the statute was “broad enough
to cover any driver in Los Angeles who eats food or transports personal belongings in his
or her vehicle,” “[y]et it appears to be applied only to the homeless.” Id. at 1149, 1156.
14 Plaintiff argues that the Challenged Ordinances’ indicia of camping do not provide
“clear guidance” to enforcement officials because “[i]n practice, the opposite is true” as
“Plaintiff was cited and threatened solely for possessing backpacks while resting in a public
park.” (Doc. 27 at 9.) Plaintiff is free to challenge whether his conduct violated the
Challenged Ordinances during the hearing on his citation, but his assertion that he was
incorrectly cited does not establish the Challenged Ordinances are unconstitutional.
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Although Desertrain shows that it is possible for a municipal anti-camping
ordinance to be unconstitutionally vague, the vagueness analysis ultimately turns on the
details. Here, the Challenged Ordinances have a feature that was conspicuously absent in
Desertrain—they provide, in their text, several “indicia” of camping that serve to narrow
and define the sorts of activities that qualify as “camping.” Cf. Thomas, 864 F.2d at 197
(“A contextual inquiry is a matter of reasoning from and delimiting ideal types (or
paradigms), and the observation that the paradigms of ‘lunch nap’ and ‘camping’ may share
an element of an hour’s sleep does not collapse the types or render vague the manifest
distinction between them. It can be said that no distinction can be drawn between such
varied acts only if no ‘core concept’ underlies the prohibited behavior. The lack of a ‘core
concept’ is the hallmark of a prohibition that is unconstitutionally vague. Here, ‘camping’
does have such a basic or unifying concept—the use of land for living accommodation
purposes—which the regulation elucidates in detail.”) (citations omitted).15
Accordingly, Count Five is dismissed.
G. Equal Protection
1. The Parties’ Arguments
Plaintiff argues in his response brief that the SAC states an Equal Protection claim.
(Doc. 27 at 11.) He argues that the SAC “allege[s] that the [Challenged Ordinances] are
enforced in a discriminatory manner against people perceived as unhoused.” (Id.)
In reply, the City argues that “Plaintiff has not asserted an equal protection claim in
his [SAC]”; rather, the SAC “refers to the Equal Protection Clause (SAC ¶¶ 94-95), but
only in connection with [Plaintiff’s] overbreadth claim, which the Court previously
dismissed.” (Doc. 30 at 10 n.4.) The City further argues that even if the SAC had asserted
15 Indeed, the Challenged Ordinances expressly address some of the concerns raised
in Desertrain because they clarify that simply eating or resting does not qualify as a
violation. MCC § 6-10-2 (“For the purposes of clarity, the term ‘camp’ or ‘camping’ in
this Chapter 10 does not refer to the mere use of city-installed coking facilities or
equipment, the possession or transportation of camping paraphernalia, or the use of a
blanket for resting absent other evidence of living accommodations.”); MCC § 6-1-23
(“For the purposes of clarity, the term ‘Camp’ or ‘Camping’ in this Section does not refer
to the mere possession or transportation of Camping Paraphernalia, or the use of a blanket
for resting, absent other evidence of living accommodations.”).
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an Equal Protection claim, “it would still fail because homeless individuals are not a
protected class, and maintaining cleanliness and safety in public areas is a rational basis
for the ordinances.” (Id.)
2. Analysis
In light of Plaintiff’s pro se status, the Court must construe the SAC liberally.
Although the SAC does not assert a standalone claim under the Equal Protection Clause,
the Court will consider the SAC as a whole to determine whether it states such a claim.
“There are several general methods by which a plaintiff may allege an equal
protection violation. First, he may allege ‘defendants acted with an intent or purpose to
discriminate against the plaintiff based upon membership in a protected class.’” Sanchez
v. City of Fresno, 914 F. Supp. 2d 1079, 1108 (E.D. Cal. 2012) (quoting Lee v. City of Los
Angeles, 250 F.3d 668, 686 (9th Cir. 2001)). “Such actions are subjected to ‘strict scrutiny’
and ‘will only be sustained if they are suitably tailored to serve a compelling state interest.’”
Id. (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
“Similar oversight is applied where state action impinges on personal rights, otherwise
framed as fundamental rights, protected by the Constitution.” Id. (cleaned up).
“Alternatively, when a policy distinguishes one group of persons from another, that
distinction must be rationally related to a legitimate governmental purpose.” Id.16
Plaintiff has not alleged that he is a member of a protected class. The SAC and
Plaintiff’s briefing identify the homeless population as the class of people who suffer
discrimination due to enforcement of the Challenged Ordinances. (Doc. 15 ¶ 94; Doc. 27
at 11.) But “no court has ever held the homeless to be a suspect class.” Sanchez, 914 F.
Supp. 2d at 1108. See also Raiser, 2020 WL 6392846 at *5 (“[H]omeless individuals are
not a protected class.”); Davison, 924 F. Supp. at 993 (“[N]o court has ever held the
homeless to be a suspect class. On the contrary, the circuits that have addressed the issue
are in accord that the homeless are not a suspect class.”). Nor has Plaintiff identified a
16 An equal protection claim can also be brought under a “class of one” theory,
Sanchez, 914 F. Supp. 2d at 1108, but Plaintiff is not pursuing such a theory here.
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fundamental right implicated by enforcement of the Challenged Ordinances.
“Accordingly, the level of scrutiny to be applied to government action that
discriminates on the basis of homelessness is rational review.” Davison, 924 F. Supp. at
993. MCC § 6-1-23 identifies purposes it is meant to effectuate, including “to maintain
City property in a clean, sanitary and accessible condition, and to adequately protect the
health, safety, and welfare of the community.” Id. These purposes “withstand this
relatively relaxed constitutional scrutiny.” Davison, 924 F. Supp. at 993. See also Joel,
232 F.3d at 1357-58 (rejecting Equal Protection challenge to anti-camping ordinance
because “[h]omeless persons are not a suspect class, nor is sleeping out-of-doors a
fundamental right” and noting that “a rational basis exists for believing that prohibiting
sleeping out-of-doors on public property would further aesthetics, sanitation, public health,
and safety”); Bilodeau v. City of Medford, 2024 WL 1470516, *9 (D. Or. 2024), report and
recommendation adopted, 2024 WL 1462328 (D. Or. 2024) (identifying “aesthetics,
sanitation, public health, safety, and environmental quality” as “legitimate concerns that
form a rational basis for the [Camping] Ordinance”).
Finally, a plaintiff asserting an equal protection claim “may also allege selective
enforcement of the ordinance at issue.” Bilodeau, 2024 WL 1470516 at *9. It appears, at
least based on his briefing, that Plaintiff believes he has asserted a claim under this theory.
(Doc. 27 at 11 [“Selective enforcement based on perceived housing status falls squarely
within this principle.”].) But “[t]o show selective enforcement, a plaintiff ‘must
demonstrate that enforcement had a discriminatory effect and the police were motivated by
a discriminatory purpose.’” Bilodeau, 2024 WL 1470516 at *9 (quoting Rosenbaum v.
City and Cnty. of San Francisco, 484 F.3d 1142, 1152 (9th Cir. 2007)). “Further, plaintiffs
seeking to enjoin enforcement must demonstrate that the selective enforcement is part of a
policy, plan, or pervasive pattern.” Id. (cleaned up). The SAC is deficient under these
standards because it does not adequately allege a discriminatory effect. “The standard for
proving discriminatory effect is a demanding one. Yet, to state a claim, [a plaintiff] need
only allege some facts, either anecdotal or statistical, demonstrating that similarly situated
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defendants could have been prosecuted, but were not.” Lacey v. Maricopa Cnty., 693 F.3d
896, 920 (9th Cir. 2012) (en banc) (cleaned up). The SAC, at most, alleges that on one
occasion, Plaintiff asked rangers who approached him “why he was being singled out while
others in the park were not questioned.” (Doc. 15 ¶ 39.) However, the SAC does not allege
that other non-homeless people in the park were engaged in the same activities in the park
as Plaintiff yet avoided enforcement. The SAC therefore fails to allege sufficient facts to
support a selective enforcement claim.
Accordingly, to the extent the SAC attempts to assert a claim under the Equal
Protection Clause, that claim is dismissed.
IV. Leave to Amend
Plaintiff does not request leave to amend. Nevertheless, the rule in the Ninth Circuit
is that “a district court should grant leave to amend even if no request to amend the pleading
was made, unless it determines that the pleading could not possibly be cured by the
allegation of other facts.” Ebner v. Fresh, Inc., 838 F.3d 958, 963 (9th Cir. 2016) (citation
omitted). The decision whether to grant leave to amend is governed by Rule 15(a) of the
Federal Rules of Civil Procedure, which “advises the court that ‘leave [to amend] shall be
freely given when justice so requires.’” Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003). “This policy is ‘to be applied with extreme liberality.’” Id.
(citation omitted). Thus, leave to amend should be granted unless “the amendment: (1)
prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in
litigation; or (4) is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946,
951 (9th Cir. 2006). Additionally, “[a] district court should not dismiss a pro se complaint
without leave to amend unless it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)
(cleaned up). “[B]efore dismissing a pro se complaint the district court must provide the
litigant with notice of the deficiencies in his complaint in order to ensure that the litigant
uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th
Cir. 1992), as amended (May 22, 1992).
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Amendment as to Counts One, Three, and Four would be futile because Plaintiff
has not alleged a constitutionally protected liberty interest of which he was deprived.
Amendment as to Count Five would also be futile because the Challenged Ordinances are
not, as a matter of law, unconstitutionally vague. In contrast, to the extent Plaintiff is able
to plead additional facts to support that he was “seized” under the Fourth Amendment, the
Court will allow him to amend Count Two. The Court will also allow Plaintiff to amend
his complaint to allege additional facts intended to support an Equal Protection claim under
a selective enforcement theory.
Accordingly,
IT IS ORDERED that:
1. The City’s motion to dismiss (Doc. 25) is granted.
2. Plaintiff’s motion for leave to file a surreply (Doc. 32) is denied.
3. Within 14 days of the issuance of this order, Plaintiff may file a TAC. The
changes shall be limited to attempting to cure the deficiencies in Count Two identified in
this order. Plaintiff may also allege additional facts to support the assertion of an Equal
Protection claim consistent with this order. If Plaintiff chooses to file a TAC, Plaintiff
shall, consistent with LRCiv 15.1, attach a redlined version of the pleading as an exhibit.
4. If Plaintiff does not file a TAC within 14 days of the issuance of this order,
the Clerk shall enter judgment accordingly and terminate this action.
Dated this 9th day of March, 2026.
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