WAS THE FLASHING OF GANG SIGNS A CHALLENGE TO FIGHT?
IN RE CESAR
192 Cal.App.4th 989 (Cal. Ct.App. 2011)
Opinion By: Mihara, J.
Appellants Cesar V. and Antonio V. challenge the juvenile court's findings that they violated Penal Code
section 415, subdivision (1) by making a challenge to fight in a public place….
The only witnesses at the contested jurisdictional hearing were Santa Cruz Police Sergeant Loran Baker
and the prosecution's gang expert.
Baker testified that on November 19, 2009, at 12:30 p.m., he was driving east on Laurel Street just
past Center Street near downtown Santa Cruz. He was in plain clothes and driving an unmarked car. The
traffic was “stop-and-go,” so he was proceeding at just “a few miles per hour.” Baker saw 16-year-old
Cesar and 17-year-old Antonio walking westbound along the sidewalk on the other side of Laurel Street.
Cesar and Antonio had “their attention directed towards the traffic and [were] making some hand signs.”
Baker was particularly attentive to this activity because a 16-year-old boy had been stabbed to death
“where the same kind of exchange was occurring” just a month earlier, a block away from this location.
Baker “couldn't tell if” the hand signs being made by Cesar and Antonio were directed at “a car or
somebody on the [other side of the] street,” but he saw that “their gestures … seemed to be getting more
aggressive and [they were] moving towards them like they were challenging them to fight, I realized then,
hey, this is for real, and they are challenging somebody.” Since their behavior was “aggressive,” Baker
could tell that they were not “fooling around.” Cesar and Antonio “changed directions” and “were moving
towards the street.” Cesar and Antonio put their hands up in the air while taking “a few steps towards the
cars like, hey, let's go,” a gesture that Baker “took that as a challenge, let's go.” They “held their arms up
in an inviting manner” which was “like, hey, it's on, you're open to somebody approaching you.”
Because Cesar and Antonio had moved to the edge of the sidewalk, and Baker was concerned that
violence would ensue, he “did a U-turn in traffic,” drove up behind Cesar and Antonio, activated his
lights, called for backup, and told Cesar and Antonio to “wait right there.” When a uniformed officer
arrived to assist Baker less than two minutes later, Baker and the other officer separated Cesar and
Antonio and spoke with them individually.
Antonio told Baker that he had “been using hand signals to display a gang slogan … towards a
car.”… ” He told Baker that “one of the occupants in the rear seat [of the Cadillac] had actually thrown
him a four, meaning Norteno sign” which would identify that person as a Norteno gang member. Antonio
told Baker that he had made signs for P, S, and C to signify the Poor Side Chicos gang, a Watsonville
Sureno gang. Poor Side Chicos consists of the “younger members” of the Poor Side Gang. Poor Chicos
like other Sureno gangs associate with the color blue and the number 13. Poor Side gang members “hate”
Antonio asserted that he “took it [the occupant's alleged sign] as being a challenge, a form of
disrespect.” He said he was “not really afraid because … there was a girl in the car.” Antonio told Baker
that he thought a fight was unlikely to occur because “typically there won't be a gang fight when the girl
was present.” Antonio also said that any fight would have been “fair” because there were two people in
the Cadillac. Antonio denied being a gang member, but he admitted that he associated with Poor Side
Chicos gang members. He said that he “had to … kind of like stand up for his friends.” Antonio
acknowledged that he was aware that his conduct had occurred in an area “where Nortenos and Surenos
would actually cross paths and it would be not good.” Antonio also admitted that the blue “swoosh” on
the Nike shoes he was wearing was intended to “signify” his Sureno affiliation.
Baker then spoke to Cesar. Like Antonio, Cesar admitted making a “hand gesture” of “a P an S and a
C for Poor Side Chicos” and claimed that an occupant of a white Cadillac had made a gesture. Cesar
maintained that he “was just holding his ground and not trying to challenge the occupants” of the
Cadillac. Cesar said he was not a gang member but admitted he associated with members of the Poor Side
Cesar and Antonio had been stopped previously by police in the company of a Poor Side Chicos gang
member. On another occasion, they were stopped by police with Sureno gang members, and Antonio was
wearing attire associated with the Poor Side Chicos gang….
The prosecution's gang expert testified that a gesture of putting one's hands up in the air would be seen
as “challenging the other person.” He also opined that the “common response” to someone making a gang
sign is violence. The expert testified that there was “no other reason” for a person to make a gang sign
besides “challenging them to fight.” The presence of a girl would not eliminate the risk of violence in
such a situation. The gang expert testified that the Poor Side Chicos gang would benefit from a challenge
such as that made by Cesar and Antonio because “[i]t would further the violent reputation” of the gang
“within the community.”
The prosecutor argued that a gang sign “thrown at someone that is perceived as a rival, is an invitation
to a fight, a challenge to a fight.” …Antonio's trial counsel joined in Cesar's counsel's arguments and
argued that Antonio “didn't think a fight was going to happen, so clearly in his mind he is not challenging
someone to fight.”
The court found that Cesar and Antonio had violated Penal Code section 415, subdivision (1) by
making gang signs in an “aggressive” manner and using a gesture to indicate “[l]et's go.” ,,
Antonio, who had previously been declared a ward, was continued as a ward and placed in his parents'
home on probation. Cesar was placed on probation without wardship in the custody of his parents. Cesar
and Antonio timely filed notices of appeal.
Cesar and Antonio contend that the juvenile court's findings that they violated Penal Code section 415,
subdivision (1) are not supported by substantial evidence.
Penal Code section 415, subdivision (1) provides: “Any person who unlawfully fights in a public
place or challenges another person in a public place to fight” commits a misdemeanor. (Pen. Code, § 415,
subd. (1).) Antonio and Cesar assert that their conduct was not a “challenge … to fight” because they
were merely responding to a gang sign displayed by an occupant of a white Cadillac. …
But for the statements of Cesar and Antonio, no evidence was presented that a white Cadillac was
within sight of Cesar and Antonio when they were observed by Baker, or that any occupant of any car or
any other person made a gang sign that instigated the conduct of Cesar and Antonio observed by Baker.
While the evidence before the juvenile court indicated that Cesar and Antonio were probably reacting to
something they observed, the precise nature of their observations was unknown. They may have been
reacting to a person, either in a vehicle or on the other side of the street, who was wearing red or whom
one or both of them recognized as a Norteno gang member. Or they may have simply been trying to
intimidate someone to whom they took a dislike. …
The statutory language here applies to a “person who unlawfully … challenges another person in a
public place to fight.”… A challenge to fight is prohibited because such a challenge may provoke a
violent response that endangers not only the challenger but any other persons who may be in the public
place where the challenge occurs. Because the statute is aimed at the inherent danger that a challenge
will result in violence, it is irrelevant whether the challenger intended to actually cause a fight. The mere
fact that the challenger may naively believe that his challenge will go unanswered does not reduce the
danger that the challenge poses to both the challenger and the public….. If a person challenges another
person to fight in a public place, he or she violates Penal Code section 415, subdivision (1). This analysis
disposes of Antonio’s contention that his conduct could not have been a challenge to fight because he did
not believe that a fight would actually occur.
Baker's testimony was sufficient to support a finding that the gestures that Cesar and Antonio made
toward someone in a car or on the other side of the street were a challenge to fight. It was undisputed that
these gestures were made in a public place. Thus, substantial evidence supports the juvenile court's
findings that Cesar and Antonio violated Penal Code section 415, subdivision (1).
The juvenile court could have drawn the reasonable inference from this evidence that Cesar and
Antonio made a gang challenge that identified them with the Poor Side Chicos gang because they wanted
to enhance that gang's violent reputation and thereby further future criminal conduct by their Poor Side
Chicos gang member friends. Questions for Discussion
1. Was Cesar and Antonio’s flashing of gang signs a “challenge to fight” and a breach of the peace?
2. Cesar and Antonio argued that they were responding to the flashing of a gang sign by an occupant of
the white Cadillac and were acting in self-defense. Should this constitute a “defense” to the charge of a
breach of the peace?
4. Does it constitute a challenge to fight if a pedestrian makes an obscene gesture to a motorist who runs a
red light and barely misses the pedestrian?
MAY INDIANAPOLIS CONSTITUTIONALLY PROHIBIT
GRESHAM v. PETERSON
225 F.3d 899 (7th Cir. 2000)
Jimmy Gresham challenges an Indianapolis ordinance that limits street begging in public places
and prohibits entirely activities defined as "aggressive panhandling." Gresham believes that the
ordinance infringes his First Amendment right to free speech and his Fourteenth Amendment
right to due process. The city considers the ordinance a reasonable response to the public safety
threat posed by panhandlers. ….
In June 1999, the City of Indianapolis amended an ordinance regarding solicitation in public
places. City-County General Ordinance No. 78 (1999), Revised Code of Indianapolis and Marion
County § 407-102. The ordinance, which became effective on July 6, 1999, reads as follows:
(a) As used in this section, panhandling means any solicitation made in person upon any street,
public place or park in the city, in which a person requests an immediate donation of money or
other gratuity from another person, and includes but is not limited to seeking donations:
(1) By vocal appeal or for music, singing, or other street performance; and,
(2) Where the person being solicited receives an item of little or no monetary value in exchange
for a donation, under circumstances where a reasonable person would understand that the
transaction is in substance a donation.
However, panhandling shall not include the act of passively standing or sitting nor performing
music, singing or other street performance with a sign or other indication that a donation is being
sought, without any vocal request other than in response to an inquiry by another person.
(b) It shall be unlawful to engage in an act of panhandling on any day after sunset, or before
(c) It shall be unlawful to engage in an act of panhandling when either the panhandler or the
person being solicited is located at any of the following locations; at a bus stop; in any public
transportation vehicle or public transportation facility; in a vehicle which is parked or stopped on
a public street or alley; in a sidewalk caf'; or within twenty (20) feet in any direction from an
automatic teller machine or entrance to a bank.
(d) It shall be unlawful to engage in an act of panhandling in an aggressive manner, including
any of the following actions:
(1) Touching the solicited person without the solicited person's consent.
(2) Panhandling a person while such person is standing in line and waiting to be admitted to a
(3) Blocking the path of a person being solicited, or the entrance to any building or vehicle;
(4) Following behind, ahead or alongside a person who walks away from the panhandler after
(5) Using profane or abusive language, either during the solicitation or following a refusal to
make a donation, or making any statement, gesture, or other communication which would cause
a reasonable person to be fearful or feel compelled; or,
(6) Panhandling in a group of two (2) or more persons.
(e) Each act of panhandling prohibited by this section shall constitute a public nuisance and a
separate violation of this Code. Each violation shall be punishable as provided in section 103-3
of the Code, and the court shall enjoin any such violator from committing further violations of
Section 103-3 provides that a person convicted of violating the ordinance will be fined not more
than $ 2,500 for each violation. The ordinance does not provide for imprisonment of violators,
except, of course, a past offender who violates the mandatory injunction provided in Paragraph
(e) could be jailed for contempt.
Jimmy Gresham is a homeless person who lives in Indianapolis on Social Security disability
benefits of $ 417 per month. He supplements this income by begging, using the money to buy
food. He begs during both the daytime and nighttime in downtown Indianapolis. Because
different people visit downtown at night than during the day, it is important to him that he be
able to beg at night. Gresham approaches people on the street, tells them he is homeless and asks
for money to buy food. Gresham has not been cited for panhandling under the new ordinance,
but he fears being cited for panhandling at night or if an officer interprets his requests for money
to be "aggressive" as defined by the law.
Gresham moved for a preliminary injunction barring enforcement of the ordinance on the
grounds that it was unconstitutionally vague and violated his right to free speech. The district
court, after hearing oral argument, notified the parties that it would convert its order on the
preliminary injunction into an order on the merits. …On September 28, 1999, the court entered a
final order denying the motion for preliminary injunction and dismissing the case.
On appeal, Gresham raises two principal arguments. First, he contends that the provisions
defining aggressive panhandling are vague because they fail to provide clear criteria to alert
panhandlers and authorities of what constitutes a violation and because they fail to include an
intent element. Second, he argues that the statute fails the test for content-neutral time, place and
manner restrictions on protected speech. ...
Laws targeting street begging have been around for many years, but in the last twenty years,
local communities have breathed new life into old laws or passed new ones. Cities, such as
Indianapolis, have tried to narrowly draw the ordinances to target the most bothersome types of
street solicitations and give police another tool in the effort to make public areas, particularly
downtown areas, safe and inviting.
While the plaintiff here has focused the inquiry on the effects of the ordinance on the poor
and homeless, the ordinance itself is not so limited. It applies with equal force to anyone who
would solicit a charitable contribution, whether for a recognized charity, a religious group, a
political candidate or organization, or for an individual. It would punish street people as well as
Salvation Army bell ringers outside stores at Christmas, so long as the appeal involved a vocal
request for an immediate donation.
The ordinance bans panhandling by beggars or charities citywide on any "street, public place
or park" in three circumstances. First, it would prohibit any nighttime panhandling. … Second, it
would prohibit at all times--day or night--panhandling in specified areas. … Third, it would
prohibit "aggressive panhandling" at all times. The defendants emphatically point out that the
ordinance allows a great deal of solicitation, including "passive" panhandling, which does not
include a vocal appeal, street performances, legitimate sales transactions and requests for
donations over the telephone or any other means that is not "in person" or does not involve an
"immediate donation." Under the ordinance, one could lawfully hold up a sign that says "give me
money" and sing "I am cold and starving," so long as one does not voice words to the effect of
"give me money."…
After recognizing a First Amendment right to solicit money in public places, the Village of
Schaumburg v. Citizens for a Better Environment, held that “a government may enact
"reasonable regulations" so long as they reflect "due regard" for the constitutional interests at
stake. 444 U.S. at 620 (1980),. The parties assume that the proper analysis to determine whether
the Indianapolis ordinance is one such reasonable regulation is that set out for "time, place and
manner" restrictions. Because the Indianapolis ordinance does not ban all panhandling, we agree
that the law could be understood as a time, place or manner regulation. Governments may
"enforce regulations of the time, place and manner of expression which are content neutral, are
narrowly tailored to serve a significant government interest, and leave open ample alternative
channels of communication." Other courts considering restrictions on solicitation also have
applied the time, place, manner analysis.
The city has a legitimate interest in promoting the safety and convenience of its citizens on
public streets. …The plaintiff concedes this much, but argues that a total nighttime ban on verbal
requests for alms is substantially broader than necessary and therefore cannot be considered
narrowly tailored. However, a government regulation can be considered narrowly tailored "so
long as the . . . regulation promotes a substantial government interest that would be achieved
less effectively absent the regulation." This means the regulation need not be a perfect fit for the
government's needs, but cannot burden substantially more speech than necessary. Furthermore, a
time, place or manner restriction need not be the least restrictive means of achieving the
government purpose, so long as it can be considered narrowly tailored to that purpose.
The city determined that vocal requests for money create a threatening environment or at
least a nuisance for some citizens. Rather than ban all panhandling, however, the city chose to
restrict it only in those circumstances where it is considered especially unwanted or bothersome--
at night, around banks and sidewalk cafes, and so forth. These represent situations in which
people most likely would feel a heightened sense of fear or alarm, or might wish especially to be
left alone. By limiting the ordinance's restrictions to only those certain times and places where
citizens naturally would feel most insecure in their surroundings, the city has effectively
narrowed the application of the law to what is necessary to promote its legitimate interest.
Finally, the plaintiff contends that the statute fails to provide ample alternative channels of
communication. We disagree. An adequate alternative does not have to be the speaker's first or
best choice, or one that provides the same audience or impact for the speech. However, the Court
has "shown special solicitude for forms of expression that are much less expensive than feasible
alternatives," and so. An alternative must be more than merely theoretically available. It must be
realistic as well. …
The Indianapolis ordinance allows many feasible alternatives to reach both the daytime and
nighttime downtown Indianapolis crowds. Under the ordinance, panhandlers may ply their craft
vocally or in any manner they deem fit (except for those involving conduct defined as
aggressive) during all the daylight hours on all of the city's public streets. Gresham contends that
soliciting at night is vital to his survival, a fact we do not dispute, but the ordinance leaves open
many reasonable ways for him to reach the nighttime downtown crowd. He may solicit at night,
so long as he does not vocally request money. He may hold up signs requesting money or engage
in street performances, such as playing music, with an implicit appeal for support. Although
perhaps not relevant to street beggars, the ordinance also permits telephone and door-to-door
solicitation at night. Thus to the extent that "give me money" conveys an idea the expression of
which is protected by the First Amendment, solicitors may express themselves vocally all day,
and in writing, by telephone or by other non-vocal means all night. Furthermore, they may solicit
in public places on all 396.4 square miles of the city, except those parts occupied by sidewalk
cafes, banks, ATMs and bus stops. This is a far cry from the total citywide ban on panhandling
overturned by the court in New York City. "[A] statute that totally prohibits begging in all public
places cannot be considered 'narrowly tailored.'"
Gresham next challenges certain provisions of the ordinance as unconstitutionally vague.
Specifically, he contends that the definition of aggressive panhandling in sections (d)(4) and
(d)(5) are not sufficiently clear to direct authorities on the enforcement of the law, nor to allow
panhandlers such as Gresham to avoid violating the law. Section (d)(4) prohibits "following
behind, ahead or alongside a person who walks away from the panhandler after being solicited."
Gresham argues hypothetically that police could cite a person for inadvertently violating this
section merely by walking in the same direction as the solicited person, without intending to
engage in "aggressive panhandling." Also, section (d)(5) refers to making a person "fearful or
feel compelled" without defining what the terms mean in relation to panhandling. A generalized
guilt at economic inequality might make one "feel compelled" even by the meekest request for
Laws must contain a "reasonable degree of clarity" so that people of "common intelligence"
can understand their meaning. Furthermore, because the penalties for noncompliance are less
severe, laws imposing civil rather than criminal penalties do not demand the same high level of
clarity Gresham faces only a fine for noncompliance with the Indianapolis law. However, this
lowered burden is mitigated by the fact that the Indianapolis ordinance potentially interferes with
the right of free speech, suggesting that a "more stringent vagueness test should apply."
The challenged provisions in this case define what the City Council meant by the term
"aggressive panhandling" and must be read in that context. The district court was rightly
concerned that Paragraph (d) could be construed as offering an incomplete list of examples of
prohibited behavior, leaving open the possibility that other unspecified actions might also be
considered illegal, which would raise serious due process concerns. The district court suggested
that the list might be exclusive rather than illustrative, a reasonable interpretation which, if
adopted by the Indiana courts, would save it from a vagueness challenge.
Likewise, Paragraphs (d)(4) and (d)(5) are subject to reasonable interpretations that answer
the vagueness challenge. A state court interpreting Paragraph (d)(4) may read it to prohibit
"following" only in the context of a continued request for money such that the victim reasonably
interprets the behavior as a threat. A continuing request for a donation coupled with "following"
would be prohibited, but walking in the same direction as the solicited person would not be
against the law if the walking were divorced from the request. Construed this way, the statute
would prohibit the type of harassing behavior that governments routinely outlaw… Numerous
cases hold that “governments may proscribe threats, extortion, blackmail and the like, "despite
the fact that they criminalize utterances because of their expressive content." …
Paragraph (d)(5) could be construed to prohibit "any statement, gesture, or other
communication" that makes a reasonable person feel they face danger if they refuse to donate,
that they are being compelled out of physical fear. The possibility that a polite request for a
donation might be heard as a threatening demand by an unusually sensitive or timid person is
eliminated by the "reasonable person" standard included in the ordinance. A statement that
makes a reasonable person feel compelled to donate out of physical fear amounts to a prohibition
on robbery or extortion, which of course would be constitutional. While it is not a certainty that
the state courts would adopt constitutional interpretations of the panhandling provisions, they are
entitled to the opportunity to do so, and we will not interfere with that right. The district court did
not err in refusing to enjoin the ordinance based on the vagueness concerns.
For the foregoing reasons, we Affirm the district court's denial of a permanent injunction and
dismissal of Gresham's complaint.
Questions for Discussion
1. What are the central provisions of the Indianapolis panhandling statute?
2. Why does the appellate court find that the Indianapolis law does not violate the First
3. Did the court find that the statute is void-for-vagueness?
4. As a judge would you find the statute constitutional? Do you think that aggressive
panhandling laws are good public policy?
ARE HOMELESS INDIVIDUALS IN LOS ANGELES BEING ARRESTED FOR THE
STATUS OF BEING A HOMELESS PERSON IN VIOLATION OF THE EIGHTH
JONES V. CITY OF LOS ANGELES
444 F.3d 1118 (9th Cir. 2006)
[dismissed and vacated 505 F.3d 1006 (9th 2007)]
Six homeless individuals, unable to obtain shelter on the night each was cited or arrested, filed
this Eighth Amendment challenge to the enforcement of a City of Los Angeles ordinance that
criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all
places within Los Angeles's city limits. Appellants seek limited injunctive relief from
enforcement of the ordinance during nighttime hours, i.e., between 9:00 p.m. and 6:30 a.m., or
at any time against the temporarily infirm or permanently disabled. We must decide whether the
Eighth Amendment right to be free from cruel and unusual punishment prohibits enforcement of
that law as applied to homeless individuals involuntarily sitting, lying, or sleeping on the street
due to the unavailability of shelter in Los Angeles.
The facts underlying this appeal are largely undisputed. Edward Jones, Patricia Vinson, George
Vinson, Thomas Cash, Stanley Barger, and Robert Lee Purrie ("Appellants") are homeless
individuals who live on the streets of Los Angeles's Skid Row district. Appellees are the City of
Los Angeles, Los Angeles Police Department ("L.A.P.D.") Chief William Bratton, and Captain
Charles Beck ("Appellees" or "the City"). Federal law defines the term "homeless individual" to
(1) an individual who lacks a fixed, regular, and adequate nighttime residence; and
(2) an individual who has a primary nighttime residence that is--
(A) a supervised publicly or privately operated shelter designed to provide temporary living
accommodations (including welfare hotels, congregate shelters, and transitional housing for the
(B) an institution that provides a temporary residence for individuals intended to be
(C) a public or private place not designed for, or ordinarily used as, a regular sleeping
accommodation for human beings.
Appellants are six of the more than 80,000 homeless individuals in Los Angeles County on any
given night. An estimated 253,000 individuals were homeless in Los Angeles County at some
point during 2002.
The term "Skid Row" derives from the lumber industry practice of building a road or track
made of logs laid crosswise over which other logs were slid. By the 1930s, the term was used to
describe the area of town frequented by loggers and densely populated with bars and brothels.
Beginning around the end of the nineteenth century, the area now known as Los Angeles's Skid
Row became home to a transient population of seasonal laborers as residential hotels began to
develop. For decades Skid Row has been home for "the down and out, the drifters, the
unemployed, and the chronic alcoholic[s]" of Los Angeles. Covering fifty city blocks
immediately east of downtown Los Angeles, Skid Row is bordered by Third Street to the north,
Seventh Street to the south, Alameda Street to the east, and Main Street to the west.
Los Angeles's Skid Row has the highest concentration of homeless individuals in the United
States. According to the declaration of Michael Alvidrez, a manager of single-room-occupancy
("SRO") hotels in Skid Row owned by the Skid Row Housing Trust, since the mid-1970s Los
Angeles has chosen to centralize homeless services in Skid Row. The area is now largely
comprised of SRO hotels (multi-unit housing for very low income persons typically consisting of
a single room with shared bathroom), shelters, and other facilities for the homeless.
Skid Row is a place of desperate poverty, drug use, and crime, where Porta-Potties serve as
sleeping quarters and houses of prostitution. Recently, it has been reported that local hospitals
and law enforcement agencies from nearby suburban areas have been caught "dumping"
homeless individuals in Skid Row upon their release. This led Los Angeles Mayor Antonio
Villaraigosa to order an investigation into the phenomenon in September 2005. L.A.P.D. Chief
William Bratton, insisting that the Department does not target the homeless but only people who
violate city ordinances (presumably including the ordinance at issue), has stated:
"If the behavior is aberrant, in the sense that it breaks the law, then there are city ordinances. . . .
You arrest them, prosecute them. Put them in jail. And if they do it again, you arrest them,
prosecute them, and put them in jail. It's that simple."
The ordinance at issue was adopted in 1968. In the late 1980s, James K. Hahn, who served as
Los Angeles City Attorney from 1985 to 2001 and subsequently as Mayor, refused to prosecute
the homeless for sleeping in public unless the City provided them with an alternative to the
streets. For the approximately 11,000-12,000 homeless individuals in Skid Row, space is
available in SRO hotels, shelters, and other temporary or transitional housing for only 9000 to
10,000, leaving more than 1000 people unable to find shelter each night. In the County as a
whole, there are almost 50,000 more homeless people than available beds.. In 1999, the fair
market rent for an SRO room in Los Angeles was $ 379 per month. Yet the monthly welfare
stipend for single adults in Los Angeles County is only $ 221. Wait-lists for public housing and
for housing assistance vouchers in Los Angeles are three- to ten-years long.
The result, in City officials' own words, is that "'the gap between the homeless population
needing a shelter bed and the inventory of shelter beds is severely large.'" As Los Angeles's
homeless population has grown, (there is an estimating annualized growth of ten percent in Los
Angeles's homeless population in the years up to and including 2003), the availability of low-
income housing in Skid Row has shrunk, according to the declaration of Alice Callaghan,
director of a Skid Row community center and board member of the Skid Row Housing Trust.
According to Callaghan's declaration, at night in Skid Row, SRO hotels, shelters, and other
temporary or transitional housing are the only alternatives to sleeping on the street; during the
day, two small parks are open to the public. Thus, for many in Skid Row without the resources
or luck to obtain shelter, sidewalks are the only place to be.
As will be discussed below, Appellants' declarations demonstrate that they are not on the
streets of Skid Row by informed choice. In addition, the Institute for the Study of Homelessness
and Poverty reports that homelessness results from mental illness, substance abuse, domestic
violence, low-paying jobs, and, most significantly, the chronic lack of affordable housing. It also
reports that between 33% and 50% of the homeless in Los Angeles are mentally ill, and 76%
percent of homeless adults in 1990 had been employed for some or all of the two years prior to
becoming homeless. Approximately 14% of homeless individuals in Los Angeles are victims of
Against this background, the City asserts the constitutionality of enforcing Los Angeles
Municipal Code section 41.18(d) against those involuntarily on the streets during nighttime
hours, such as Appellants. It provides:
No person shall sit, lie or sleep in or upon any street, sidewalk or other public way.
The provisions of this subsection shall not apply to persons sitting on the curb portion of any
sidewalk or street while attending or viewing any parade permitted under …this Code; nor shall
the provisions of this subsection supply [sic] to persons sitting upon benches or other seating
facilities provided for such purpose by municipal authority by this Code. violation of section
41.18(d) is punishable by a fine of up to $ 1000 and/or imprisonment of up to six months.
Section 41.18(d) is one of the most restrictive municipal laws regulating public spaces in the
United States. The City can secure a conviction under the ordinance against anyone who merely
sits, lies, or sleeps in a public way at any time of day. Other cities' ordinances similarly directed
at the homeless provide ways to avoid criminalizing the status of homelessness by making an
element of the crime some conduct in combination with sitting, lying, or sleeping in a state of
homelessness. For example, Las Vegas prohibits standing or lying in a public way only when it
obstructs pedestrian or vehicular traffic. Others, such as Portland, prohibit "camping" in or upon
anypublic property or public right of way. Still others contain safe harbor provisions such as
limiting the hours of enforcement. Seattle, Washington provides that "No person shall sit or lie
down upon a public sidewalk . . . during the hours between seven (7:00) a.m. and nine (9:00)
p.m. in the following zones . . . ." Other cities follow Seattle and include as a required element
sitting, lying, or sleeping in clearly defined and limited zones. As a result of the expansive reach
of section 41.18(d), the extreme lack of available shelter in Los Angeles, and the large
homeless population, thousands of people violate the Los Angeles ordinance every day and
night, and many are arrested, losing what few possessions they may have. 2 Appellants are
Robert Lee Purrie is in his early sixties. He has lived in the Skid Row area for four decades.
Purrie sleeps on the streets because he cannot afford a room in an SRO hotel and is often unable
to find an open bed in a shelter. Early in the morning of December 5, 2002, Purrie declares that
he was sleeping on the sidewalk at Sixth Street and Towne Avenue because he "had nowhere
else to sleep." At 5:20 a.m., L.A.P.D. officers cited Purrie for violating section 41.18(d). He
could not afford to pay the resulting fine.
Purrie was sleeping in the same location on January 14, 2003, when police officers woke him
early in the morning and searched, handcuffed, and arrested him pursuant to a warrant for failing
to pay the fine from his earlier citation. The police removed his property from his tent, broke it
down, and threw all of his property, including the tent, into the street. The officers also removed
the property and tents of other homeless individuals sleeping near Purrie. After spending the
night in jail, Purrie was convicted of violating section 41.18(d), given a twelve month suspended
sentence, and ordered to pay $ 195 in restitution and attorneys' fees. Purrie was also ordered to
stay away from the location of his arrest. Upon his release, Purrie returned to the corner where he
had been sleeping on the night of his arrest to find that all the belongings he had left behind,
including blankets, clothes, cooking utensils, a hygiene kit, and other personal effects, were
Stanley Barger suffered a brain injury in a car accident in 1998 and subsequently lost his
Social Security Disability Insurance. His total monthly income consists of food stamps and $ 221
in welfare payments. According to Barger's declaration, he "want[s] to be off the street" but can
only rarely afford shelter. At 5:00 a.m. on December 24, 2002, Barger was sleeping on the
sidewalk at Sixth and Towne when L.A.P.D. officers arrested him. Barger was jailed, convicted
of violating section 41.18(d), and sentenced to two days time served.
When Thomas Cash was cited for violating section 41.18(d), he had not worked for
approximately two years since breaking his foot and losing his job, and had been sleeping on the
street or in a Skid Row SRO hotel. Cash suffers from severe kidney problems, which cause
swelling of his legs and shortness of breath, making it difficult for him to walk. At approximately
noon on January 10, 2003, Cash tired as he walked to the SRO hotel where he was staying. He
was resting on a tree stump when L.A.P.D. officers cited him.
Edward Jones's wife, Janet, suffers serious physical and mental afflictions. Edward takes care
of her, which limits his ability to find full-time work, though he has held various minimum wage
jobs. The Joneses receive $ 375 per month from the Los Angeles County General Relief
program, enabling them to stay in Skid Row SRO hotels for the first two weeks of each month.
Because shelters separate men and women, and Janet's disabilities require Edward to care for her,
the Joneses are forced to sleep on the streets every month after their General Relief monies run
out. At 6:30 a.m. on November 20, 2002, Edward and Janet Jones were sleeping on the sidewalk
at the corner of Industrial and Alameda Streets when the L.A.P.D. cited them for violating
Patricia and George Vinson, a married couple, were looking for work and a permanent place
to live when they were cited for violating section 41.18(d). They use their General Relief
payments to stay in motels for part of every month and try to stay in shelters when their money
runs out. On the night of December 2, 2002, they missed a bus that would have taken them to a
shelter and had to sleep on the sidewalk near the corner of Hope and Washington Streets instead.
At 5:30 a.m. the next morning, L.A.P.D. officers cited the Vinsons for violating section 41.18(d).
The record before us includes declarations and supporting documentation from nearly four
dozen other homeless individuals living in Skid Row who have been searched, ordered to move,
cited, arrested, and/or prosecuted for, and in some cases convicted of, violating section 41.18(d).
Many of these declarants lost much or all of their personal property when they were arrested.
On February 19, 2003, Appellants filed a complaint in the United States District Court for the
Central District of California pursuant to 42 U.S.C. § 1983. They seek a permanent injunction
against the City of Los Angeles and L.A.P.D. Chief William Bratton and Captain Charles Beck
(in their official capacities), barring them from enforcing section 41.18(d) in Skid Row between
the hours of 9:00 p.m. and 6:30 a.m. Appellants allege that by enforcing section 41.18(d) twenty-
four hours a day against persons with nowhere else to sit, lie, or sleep, other than on public
streets and sidewalks, the City is criminalizing the status of homelessness in violation of the
Eighth and Fourteenth Amendments to the U.S. Constitution, and Article I, sections 7 and 17 of
the California Constitution, guaranteeing due process and equal protection and prohibiting cruel
and unusual punishment. Relying heavily on Joyce v. City and County of San Francisco, 846 F.
Supp. 843 (N.D. Cal. 1994), the district court held that enforcement of the ordinance does not
violate the Eighth Amendment because it penalizes conduct, not status. This appeal timely
The district court erred by not engaging in a more thorough analysis of Eighth Amendment
jurisprudence under Robinson v. California, 370 U.S. 660, 1962), and Powell v. Texas, 392 U.S.
514 (1968), when it held that the only relevant inquiry is whether the ordinance at issue punishes
status as opposed to conduct, and that homelessness is not a constitutionally cognizable status.
The district court relied exclusively on the analysis of Robinson and Powell by another district
court in Joyce v. City and County of San Francisco, in which plaintiffs challenged certain aspects
of San Francisco's comprehensive homelessness program on Eighth Amendment grounds.
Joyce, however, was based on a very different factual underpinning than is present here. Called
the "Matrix Program," the homelessness program was "'an interdepartmental effort . . . [utilizing]
social workers and health workers . . . [and] offering shelter, medical care, information about
services and general assistance.'" One element of the program consisted of the "Night Shelter
Referral" program conducted by the Police Department, which handed out "referrals" to
temporary shelters. The City demonstrated that of 3,820 referral slips offered to men, only 1,866
were taken and only 678 used. .
The Joyce plaintiffs made only the conclusory allegation that there was insufficient shelter,
they did not make the strong evidentiary showing of a substantial shortage of shelter Appellants
make here. Moreover, the preliminary injunction plaintiffs sought in Joyce was so broad as to
enjoin enforcement of prohibitions on camping or lodging in public parks and on "'life-sustaining
activities such as sleeping, sitting or remaining in a public place,'" which might also include such
antisocial conduct as public urination and aggressive panhandling. . Reasoning that plaintiffs'
requested injunction was too broad and too difficult to enforce… the district court denied the
injunction. The Joyce court also concluded that homelessness was not a status protectable under
the Eighth Amendment, holding that it was merely a constitutionally noncognizable "condition."
We disagree with the analysis of Robinson and Powell conducted by both the district court in
Joyce and the district court in the case at bar. The City could not expressly criminalize the status
of homelessness by making it a crime to be homeless without violating the Eighth Amendment,
nor can it criminalize acts that are an integral aspect of that status. Because there is substantial
and undisputed evidence that the number of homeless persons in Los Angeles far exceeds the
number of available shelter beds at all times, including on the nights of their arrest or citation,
Los Angeles has encroached upon Appellants' Eighth Amendment protections by criminalizing
the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless.
A closer analysis of Robinson and Powell instructs that the involuntariness of the act or
condition the City criminalizes is the critical factor delineating a constitutionally cognizable
status, and incidental conduct which is integral to and an unavoidable result of that status, from
acts or conditions that can be criminalized consistent with the Eighth Amendment.
Our analysis begins with Robinson, which announced limits on what the state can criminalize
consistent with the Eighth Amendment. In Robinson, the Supreme Court considered whether a
state may convict an individual for violating a statute making it a criminal offense to "'be
addicted to the use of narcotics.'" The trial judge had instructed the jury that …”[a]ll that the
People must show is . . . that while in the City of Los Angeles [Robinson] was addicted to the
use of narcotics . . . ."
The Court reversed Robinson's conviction, reasoning:
It is unlikely that any State at this moment in history would attempt to make it a criminal offense
for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. . . . In the
light of contemporary human knowledge, a law which made a criminal offense of such a disease
would doubtless be universally thought to be an infliction of cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments….
We cannot but consider the statute before us as of the same category.
At a minimum, Robinson establishes that the state may not criminalize "being"; that is, the state
may not punish a person for who he is, independent of anything he has done….
Six years after its decision in Robinson, the Supreme Court considered the case of Leroy
Powell, who had been charged with violating a Texas statute making it a crime to "'get drunk or
be found in a state of intoxication in any public place.' he has no control."
In a 4-1-4 decision, the Court affirmed Powell's conviction. The four Justices joining the
plurality opinion interpreted Robinson to prohibit only the criminalization of pure status and not
to limit the criminalization of conduct. …Because Powell was convicted not for his status as a
chronic alcoholic, but rather for his acts of becoming intoxicated and appearing in public, the
Powell plurality concluded that the Clause as interpreted by Robinson did not protect him.
In contrast, the four Justices in dissent read Robinson to stand for the proposition that
"criminal penalties may not be inflicted on a person for being in a condition he is powerless to
change." …[T]he dissenters addressed the involuntariness of Powell's behavior, noting that
Powell had "'an uncontrollable compulsion to drink' to the point of intoxication; and that, once
intoxicated, he could not prevent himself from appearing in public places." Having found that the
Cruel and Unusual Punishment Clause, as interpreted by Robinson, protects against the
criminalization of being in a condition one is powerless to avoid, and because Powell was
powerless to avoid public drunkenness, the dissenters concluded that his conviction should be
The Robinson and Powell decisions, read together, compel us to conclude that enforcement
of section 41.18(d) at all times and in all places against homeless individuals who are sitting,
lying, or sleeping in Los Angeles's Skid Row because they cannot obtain shelter violates the
Cruel and Unusual Punishment Clause.
As homeless individuals, Appellants are in a chronic state that may have been acquired
"innocently or involuntarily." Whether sitting, lying, and sleeping are defined as acts or
conditions, they are universal and unavoidable consequences of being human. It is undisputed
that, for homeless individuals in Skid Row who have no access to private spaces, these acts can
only be done in public…..Appellants have made a substantial showing that they are "unable to
stay off the streets on the night[s] in question."
In disputing our holding, the dissent veers off track by attempting to isolate the supposed
"criminal conduct" from the status of being involuntarily homeless at night on the streets of Skid
Row…. The City and the dissent apparently believe that Appellants can avoid sitting, lying, and
sleeping for days, weeks, or months at a time to comply with the City's ordinance, as if human
beings could remain in perpetual motion. That being an impossibility, by criminalizing sitting,
lying, and sleeping, the City is in fact criminalizing Appellants' status as homeless individuals.
The state may not make it an offense to be idle, indigent, or homeless in public places. Nor
may the state criminalize conduct that is an unavoidable consequence of being homeless--namely
sitting, lying, or sleeping on the streets of Los Angeles's Skid Row. As Justice White stated in
Powell, "punishing an addict for using drugs convicts for addiction under a different name.”
Homelessness is not an innate or immutable characteristic, nor is it a disease, such as drug
addiction or alcoholism. But generally one cannot become a drug addict or alcoholic, as those
terms are commonly used, without engaging in at least some voluntary acts (taking drugs,
drinking alcohol). Similarly, an individual may become homeless based on factors both within
and beyond his immediate control, especially in consideration of the composition of the
homeless as a group: the mentally ill, addicts, victims of domestic violence, the unemployed, and
the unemployable. That Appellants may obtain shelter on some nights and may eventually escape
from homelessness does not render their status at the time of arrest any less worthy of protection
than a drug addict's or an alcoholic's.
Undisputed evidence in the record establishes that at the time they were cited or arrested,
Appellants had no choice other than to be on the streets. Even if Appellants' past volitional acts
contributed to their current need to sit, lie, and sleep on public sidewalks at night, those acts are
not sufficiently proximate to the conduct at issue here for the imposition of penal sanctions to be
permissible. In contrast, we find no Eighth Amendment protection for conduct that a person
makes unavoidable based on their own immediately proximate voluntary acts, for example,
driving while drunk, harassing others, or camping or building shelters that interfere with
pedestrian or automobile traffic. Holding
Our holding is a limited one. We do not hold that the Eighth Amendment …. prevents the state
from criminalizing conduct that is not an unavoidable consequence of being homeless, such as
panhandling or obstructing public thoroughfares. And we are not called upon to decide the
constitutionality of punishment when there are beds available for the homeless in shelters.
We hold only that just as the Eighth Amendment prohibits the infliction of criminal
punishment on an individual for being a drug addict, or for involuntary public drunkenness that
is an unavoidable consequence of being a chronic alcoholic without a home, he Eighth
Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public
sidewalks that is an unavoidable consequence of being human and homeless without shelter in
the City of Los Angeles.
We do not suggest that Los Angeles adopt any particular social policy, plan, or law to care for
the homeless. We do not desire to encroach on the legislative and executive functions reserved to
the City Council and the Mayor of Los Angeles. There is obviously a "homeless problem" in the
City of Los Angeles, which the City is free to address in any way that it sees fit, consistent with
the constitutional principles we have articulated. See id. By our decision, we in no way dictate to
the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to
sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City. All we
hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the
number of available beds, the City may not enforce section 41.18(d) at all times and places
throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in
public. Appellants are entitled at a minimum to a narrowly tailored injunction against the City's
enforcement of section 41.18(d) at certain times and/or places.
We reverse the award of summary judgment to the City, grant summary judgment to
Appellants, and remand to the district court for a determination of injunctive relief consistent
with this opinion.
Rymer, J., dissenting:
Los Angeles Municipal Code (LAMC) § 41.18(d) does not punish people simply because they
are homeless. It targets conduct -- sitting, lying or sleeping on city sidewalks -- that can be
committed by those with homes as well as those without. …Neither the Supreme Court nor any
other circuit court of appeals has ever held that conduct derivative of a status may not be
criminalized. … [T]he City cannot penalize the status of being homeless plus the condition of
being without shelter that exists by virtue of the City's failure to provide sufficient housing on
any given night. The ramifications of so holding are quite extraordinary. We do not -- and should
not -- immunize from criminal liability those who commit an act as a result of a condition that
the government's failure to.
Jones argues that LAMC § 41.18(d) makes criminal what biology and circumstance make
necessary, that is, sitting, lying, and sleeping on the streets. He maintains that the gap between
the number of homeless persons in Los Angeles, and the number of available shelter beds,
leaves thousands without shelter every night. Jones claims that the situation is particularly acute
on Skid Row, where most homeless shelters and services have been centralized. As Jones puts it,
so long as there are more homeless people than shelter beds, "the nightly search for shelter will
remain a zero-sum game in which many of the homeless, through no fault of their own, will end
up breaking the law." By enforcing the ordinance, Jones contends, the City subjects homeless
persons to a cycle of citation, arrest, and punishment for the involuntary and harmless conduct of
sitting or lying in the street. Accordingly, he seeks to bring the ordinance "in line with less
draconian ordinances in other cities" by barring its enforcement in Skid Row during nighttime
Jones relies on Robinson v. California, to argue that persons cannot be punished for their
status alone. …Jones submits that as the City could not expressly criminalize the status of being
homeless without offending the Eighth Amendment, it cannot enforce the ordinance when the
number of homeless persons exceeds the number of available shelter beds because to do so has
the effect of criminalizing homelessness….
[A]pplication of LAMC § 41.18(d) to Jones's situation is not the "rare type of case" for which
the Cruel and Unusual Punishment Clause limits what may be criminalized. Robinson does not
apply to criminalization of conduct. Its rationale is that the California statute penalizing
addiction failed to criminalize conduct, and this failure is what made it unconstitutional. …The
plurality in Powell interpreted Robinson this way, and in a view that is binding on us now …[as]
the offense here is the act of sleeping, lying or sitting on City streets, Robinson does not apply.
Also, in the rare case exemplified by Robinson, the status being criminalized is an internal
affliction, potentially an innocent or involuntary one. ….Although the majority acknowledges
that homelessness is neither a disease nor an innate or immutable characteristic, it nevertheless
holds that Jones, as a homeless individual, is "in a chronic state that may have been 'contracted
innocently or involuntarily.'" Being homeless, however, is a transitory state. Some people fall
into it, others opt into it. For many, including the homeless persons who pursue this action, it is a
status that fluctuates on a daily basis and can change depending upon income and opportunities
for shelter. Many are able to escape it altogether….
In further contrast to Robinson, where the Court noted that California through its statute "said
that a person can be continuously guilty of this offense [being addicted to the use of narcotics],
whether or not he has ever used or possessed any narcotics within the State, and whether or not
he has been guilty of any antisocial behavior there." Los Angeles through its ordinance does not
purport to say that "a person can be continuously guilty of this offense," whether or not he has
ever slept on a City street. This is important for two reasons: first, because it shows that the
statute itself does not suffer the Robinson defect of making the status of being homeless a
criminal offense; and second, because there is no evidence that Jones or any of the parties joining
with him -- including Purrie or Barger, who were convicted of violating LAMC §41.18(d) --
were unable to stay off the sidewalk on the night they were arrested. For this reason, Jones
cannot prevail on the evidence presented … Despite this, the majority here reasons that …
Purrie and Barger made a substantial showing that they are "unable to stay off the streets on the
night[s] in question," because "all human beings must sit, lie, and sleep, and hence must do these
things somewhere. It is undisputed that, for homeless individuals in Skid Row who have no
access to private spaces, these acts can only be done in public." …
As the majority's opinion seems to me contrary to the Supreme Court's instruction to apply
Robinson sparingly, and instead applies it expansively, I dissent. I believe the district court
correctly concluded that the … limits on what can be made criminal and punished as such do not
extend to an ordinance that prohibits the acts of sleeping, sitting or lying on City streets.
Accordingly, I would affirm.
Questions for Discussion
1. Summarize Los Angeles Municipal Code section 41.18(d).
2. Explain why the Court of Appeals concludes that the enforcement of the Los Angeles
Municipal Code violates the Eighth Amendment.
3. Compare and contrast the arguments of the majority and of the dissent.
Were the defendants guilty of cruelty to a cat?
HALL V. INDIANA, 791 N.E.2D 257 (IND. APP. 2003), OPINION BY: SULLIVAN, J.
The facts favorable to the jury’s verdict reveal that while patrolling on December 30, 2000,
Deputy Robert Olesky of the Madison County Sheriff’s Department observed two men, later
identified as the defendants, walking with long guns but not wearing “hunter orange” clothing.
Concerned that the defendants might be in violation of hunting laws, Olesky pulled his patrol car
to the side of the road and observed the defendants with binoculars. Chris was carrying a rifle
and pointed it at something on the ground a short distance away, shooting approximately twenty
times. Mark fired a shotgun twice, once at a short distance away and once at very close range,
“pretty much just straight down towards its feet.”
Olesky drove up to the defendants and discovered that they had been shooting at a cat. The cat
had been hit numerous times and was dead. Olesky took possession of the rifle Chris had been
using and eventually retrieved the shotgun from Mark as well, which was determined to be
below the statutory minimum length. The State charged both defendants with cruelty to an
animal and charged Mark with dealing in a sawed-off shotgun. Following a jury trial held on
June 6, 2002, both defendants were found guilty as charged. The trial court entered judgment on
the convictions and sentenced Chris to one year suspended and to be served on probation. Mark
was sentenced to three years incarceration, with six months executed and to be served in a work-
release program and thirty months suspended and to be served on probation. . . .
The defendants claim that the evidence is insufficient to support their convictions for cruelty to
an animal. The statute under which the defendants were charged reads in relevant part, “A person
who knowingly or intentionally tortures, beats, or mutilates a vertebrate animal commits cruelty
to an animal, a Class A misdemeanor.” . . . Here, Chris was charged with knowingly or
intentionally mutilating a vertebrate animal, to-wit: by firing approximately thirty (30) projectiles
from a shotgun into the body of a carcass of a cat until the cat was dead and its corpse
mutilated.” . . .
The defendants’ main argument is that there is insufficient evidence that they mutilated the cat as
charged. In support of this contention, the defendants cite Boushehry v. State, 648 N.E.2d 1174
(Ind. Ct. App. 1995). In Boushehry, the defendant was charged and convicted of two counts of
knowingly torturing or mutilating a Canadian goose resulting in the death of the goose. The facts
leading to Boushehry’s arrest and conviction were that he had instructed Jim Waugh to shoot
geese. Waugh fired two or three shots from a .22 caliber rifle, killing one goose and wounding
another. Boushehry then cut the wounded bird’s throat to kill it.
Upon appeal, Boushehry claimed that there was insufficient evidence to establish that he or
Waugh had either tortured or mutilated either bird. The State countered that the act of shooting
the geese constituted mutilation. The Boushehry court held that the act of shooting the goose,
which died instantly, was insufficient to support a conviction for cruelty to an animal.
Specifically, the court wrote that one goose died instantly and that there was no evidence
presented at trial that either Boushehry or Waugh tortured or mutilated the goose in achieving its
death. The act of shooting the goose was not considered enough alone to establish cruelty to an
animal by either torture or mutilation. Because Boushehry was charged with only the torturing or
mutilation death of the geese, his conviction for cruelty to an animal based on the death of the
goose who died from the gunshot, absent evidence that the goose was tortured or mutilated, was
As to the conviction based upon the death of the other goose, the court held that the evidence
was sufficient to support the conviction. The court held that Boushehry’s act of slitting the
wounded bird’s throat “constituted mutilation in its plain, or ordinary and usual, sense.”
Because the statute does not define mutilate, we take the term in its plain, or ordinary and usual,
sense. Webster defines mutilate as “to cut off or permanently destroy a limb or essential part of .
. .” and “to cut up or alter radically so as to make imperfect.” In the case at bar, the evidence
most favorable to the conviction reveals that unlike the first goose in Boushehry, the cat here did
not die instantly; instead, the cat was shot numerous times. Although shooting an animal once
and killing it instantaneously does not constitute mutilation, here, the evidence most favorable to
the verdict reveals that Chris shot at the cat approximately twenty times with a rifle, and Mark
shot at the cat twice with a shotgun. Although there is no direct evidence on precisely how many
times the cat was struck, the testimonial and photographic evidence reveals that the cat was hit
A reasonable jury could conclude that the cat was mutilated, i.e., altered radically so as to be
made imperfect. . . . This is not to say that every act of shooting an animal more than once is
mutilation, but instead that given the circumstances of this case, the jury could reasonably
conclude that the defendants’ acts constituted mutilation in its plain and ordinary sense.
The defendants also claim that they presented uncontested evidence that they shot the cat to
protect Mark’s person and property and to prevent the cat from prolonged suffering. This is
simply an invitation to reweigh evidence and judge witness credibility, a task within the province
of the jury. The judgment of the trial court is affirmed.
Dissenting, Baker, J.
The first time I went rabbit hunting—and the next to last—I was accompanied by an
accomplished sportsman and family friend who was undoubtedly perturbed at how long I stalked
my prey before discharging my shotgun in the direction of the poor wretch. As I was too close to
the creature, we found little more of my quarry than the tail. Was that felony mutilation? I think
Although the majority opines that multiple shots will not necessarily constitute mutilation, it
maintains that it possibly could. While I do not condone shooting cats, in this instance, it was not
otherwise illegal. The rapidity with which Chris and Mark dispatched the feline demonstrates
that other than being either incompetent marksmen or intending to quickly destroy the pitiful
animal, their acts were not such as prohibited by statute. Thus, I would reverse their Class A
misdemeanor convictions for cruelty to an animal.
Questions for Discussion
1. Why were the defendants convicted of animal cruelty? At what point in their shooting
of the cat was their conduct transformed from legal to illegal?
2. How does the court distinguish the facts in Hall from Boushehry?
3. Should there be a statutory provision prohibiting shooting cats? Several states are
experiencing an “epidemic” of feral cats and are considering legalizing the killing of
“wild cats.” Animal groups favor capturing and neutering feral cats.
4. Was this a victimless crime?
5. How can we process animals for food consumption and eat meat and at the same time
punish cruelty to animals?
6. Do you agree with the majority or dissenting opinion?