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United States Court of Appeals,
Fifth Circuit.
No. 94-10875.
Prince JOHNSON, et al., Plaintiffs-Appellees,
v.
CITY OF DALLAS, TX, et al., Defendants-Appellants.
Aug. 23, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before WISDOM, DUHÉ and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Appellants, the City of Dallas, et al., appeal from the
district court's August 18, 1994 memorandum opinion and order
granting in part and denying in part Appellees' application for
preliminary injunction. Because we find that Appellees are without
standing to raise their Eighth Amendment claim, we reverse, vacate
the preliminary injunction and remand with instructions to dismiss
Appellees' Eighth Amendment claims.
I. BACKGROUND
Plaintiffs, seeking to represent a class1 of homeless persons,
filed this action asserting that various City of Dallas (City)
ordinances, as enforced, violated their First, Fourth, Fifth,
Eighth, Ninth and Fourteenth Amendment rights. On May 20, 1994,
the district court, after a hearing, entered a temporary
1Subsequent to the date of this appeal, the district judge
certified this lawsuit as a class action pursuant to Fed.R.Civ.P.
23(b)(2).
1

restraining order (TRO) enjoining the City from arresting,
harassing and/or otherwise interfering with Appellees and those
they represent. On June 2, 1994, the court granted in part and
denied in part Appellees' motion for preliminary injunction.
Specifically, the district court dissolved that portion of the TRO
that enjoined the City from enforcing the Texas Criminal Trespass
Statute.2 On August 18, 1994, after additional briefing, the
district court entered a memorandum opinion and order3 in which he
reconsidered and modified his June 2nd order.
The district court concluded that, as applied, the sleeping in
public ordinance failed to pass constitutional muster under an
Eighth Amendment analysis,4 and entered a preliminary injunction
enjoining its enforcement. However, the court concluded that the
remaining ordinances were constitutionally valid. Appellees have
not filed a cross-appeal; therefore only the district court's
Eighth Amendment ruling on the sleeping in public ordinance is
presently before the court.
II. STANDING
Appellants assert that Appellees lack standing to raise an
Eighth Amendment challenge to the sleeping in public ordinance. We
agree. Although this issue is raised for the first time on appeal,
standing is jurisdictional, and may be raised at any time. See
2Texas Penal Code § 30.05. The district court specifically
permitted uniform enforcement of the statute on city property.
3Prince v. City of Dallas, 860 F.Supp. 344 (N.D.Tex.1994).
4The district court rejected the remaining constitutional
challenges to the sleeping in public ordinance.
2

FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107
L.Ed.2d 603 (1990).
It is a long-settled principle that standing cannot be
"inferred argumentatively from averments in the pleadings,"
but rather "must affirmatively appear in the record." And it
is the burden of "the party who seeks the exercise of
jurisdiction in his favor," "clearly to allege facts
demonstrating that he is a proper party to invoke judicial
resolution of the dispute." Thus, petitioners in this case
must "allege ... facts essential to show jurisdiction. It
[they] fai[l] to make the necessary allegations, [they have]
no standing."
Id. at 231, 110 S.Ct. at 608 (citations omitted, modification in
original).
The law is well settled that "a plaintiff who has not been
prosecuted under a criminal statute does not normally have standing
to challenge the statute's constitutionality." See, Boyle v.
Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Ingraham
v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ("An
examination of the history of the Amendment and the decisions of
this Court construing the proscription against cruel and unusual
punishment confirms that it was designed to protect those convicted
of crimes."); see also, Palermo v. Rorex, 806 F.2d 1266, 1271 (5th
Cir.1987), cert. denied, 484 U.S. 819, 108 S.Ct. 77, 98 L.Ed.2d 40
(1987) ("The cruel and unusual punishment clause of the Eighth
Amendment applies only in criminal actions, following a
conviction.").5
5It is equally evident that the state does not incur Eighth
Amendment liability even where injury occurs as the result of
official conduct, unless the individual was being held in custody
after criminal conviction. See Ingraham v. Wright, 430 U.S. at
664, 97 S.Ct. at 1409 (Corporal punishment of school children
does not violate Eighth Amendment); Graham v. Connor, 490 U.S.
3

Nonetheless, Appellees urge us to follow the lead of Joyce v.
City and County of San Francisco6 wherein the district court spun
certain language out of the Supreme Court's Ingraham v. Wright
opinion to weave a new theory of Eighth Amendment jurisprudence out
of whole cloth. In Joyce, the district court rejected the City and
County of San Francisco's assertion that plaintiffs lacked Eighth
Amendment standing to challenge the constitutionality of certain
ordinances because they had not been convicted of violating the
ordinances. An examination of the Ingraham case readily displays
the fallacy of the court's conclusion.
In Ingraham v. Wright, the Supreme Court recognized that the
Cruel and Unusual Punishments Clause [of the Eighth Amendment]
circumscribes the criminal process in three ways: First, it
limits the kinds of punishment that can be imposed on those
convicted of crimes; second, it proscribes punishment grossly
disproportionate to the severity of the crime; and third, it
imposes substantive limits on what can be made criminal and
punished as such.
430 U.S. at 667, 97 S.Ct. at 1410 (citations omitted, emphasis
supplied). The Joyce court relied on the above emphasized language
for the proposition that an accused may challenge a statute, prior
386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (In excessive force
suit brought under 42 U.S.C. § 1983, "the less protective Eighth
Amendment standard applies "only after the State has complied
with the constitutional guarantees traditionally associated with
criminal prosecutions.' "); Lynch v. Cannatella, 810 F.2d 1363,
1375 (5th Cir.1987) (same); Hewitt v. Truth or Consequences, 758
F.2d 1375, 1377 n. 2 (10th Cir.1985), cert. denied, 474 U.S. 844,
106 S.Ct. 131, 88 L.Ed.2d 108 (1985) (same); D'Aguanno v.
Gallagher, 50 F.3d 877, 879 n. 2 (11th Cir.1995) (Deputy
sheriff's conduct toward homeless people could not constitute
Eighth Amendment violation where homeless persons had not been
convicted of any crime.).
6846 F.Supp. 843 (N.D.Cal.1994).
4

to conviction, on the basis that it is outside the Eighth
Amendment's "substantive limits on what can be made criminal." 846
F.Supp. at 853.
However, the Joyce court ignored the remaining language of the
Ingraham opinion. As stated previously, Ingraham stands for the
proposition that the Eighth Amendment "was designed to protect
those convicted of crimes." Ingraham v. Wright, 430 U.S. at 664,
97 S.Ct. at 1409. The mere fact that a convicted person can attack
the Eighth Amendment validity of a law does not affect this basic
tenet. In fact, an examination of Robinson v. California,7 the
case on which the Court relied for its conclusion that the Eighth
Amendment places substantive limits on the criminal law, runs
contrary to Joyce 's holding; because Robinson involved a post
conviction challenge to the validity of a California law. Robinson
v. California, 370 U.S. at 663, 82 S.Ct. at 1418-19. The Joyce
court plainly reached an incorrect result on this issue, and we
have found no other authority supporting Appellees' proposition.
We have thoroughly examined the designated record on appeal.
While we find that numerous tickets have been issued, we find no
indication that any Appellees have been convicted of violating the
sleeping in public ordinance. "[I]f none of the named plaintiffs
purporting to represent a class establishes the requisite of a case
or controversy with the defendants, none may seek relief on behalf
of himself or any other member of the class." O'Shea v. Littleton,
414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).
7370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
5

As the Supreme Court has set forth previously, "[t]he case-or
controversy doctrines state fundamental limits on federal judicial
power in our system of government. The Art. III doctrine that
requires a litigant to have "standing' to invoke the power of the
court is perhaps the most important of these doctrines." Allen v.
Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556
(1984). Appellees do not have standing to raise an Eighth
Amendment challenge to the sleeping in public ordinance, and
therefore the district court was without jurisdiction to issue the
preliminary injunction enjoining its enforcement.
III. CONCLUSION
We REVERSE the holding of the district court on Appellees'
Eighth Amendment challenge, VACATE the preliminary injunction and
REMAND with instructions to dismiss Appellees' Eighth Amendment
challenge for lack of standing.
REVERSED, VACATED and REMANDED with instructions.

6