UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SACRAMENTO HOMELESS No. 23-16123 UNION, a local of the California Homeless Union/Statewide Organizing D.C. No. Council; BETTY RIOS; DONTA 2:22-cv-01095- WILLIAMS; FALISHA SCOTT, TLN-KJN

Plaintiffs-Appellees, ORDER

v. CITY OF SACRAMENTO,

Defendant-Appellant, and COUNTY OF SACRAMENTO,

Defendant.

Filed September 10, 2024

Before: M. Margaret McKeown and Morgan Christen, Circuit Judges, and David A. Ezra,* District Judge. * The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2 SACRAMENTO HOMELESS UNION V. CITY OF SACRAMENTO

Order; Statement by Judges McKeown, Christen, and Ezra; Statement by Judge R. Nelson

SUMMARY**

Mootness

The panel denied a petition for panel rehearing and for rehearing en banc from the panel’s order dismissing as moot an appeal from the district court’s preliminary injunction in an action brought by unhoused individuals who alleged that the City of Sacramento violated the Fourteenth Amendment under the state-created danger doctrine by clearing homeless encampments. Respecting the denial of rehearing en banc Judge McKeown, joined by Judge Christen and District Judge Ezra, wrote that a brief account of the facts and the panel’s faithful application of circuit precedent was appropriate because Judge Nelson’s statement respecting the denial of rehearing en banc obscured the basis for the panel’s underlying dismissal order. Judge McKeown wrote that this appeal is moot, as the preliminary injunction at issue expired more than a year ago and invoking an exception to mootness would be at odds with circuit precedent. The legal issue underlying the injunction—the state-created danger doctrine under the Fourteenth Amendment’s Due Process Clause—is

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SACRAMENTO HOMELESS UNION V. CITY OF SACRAMENTO 3

too fact dependent to decide on circumstances that existed more than a year ago and circumstances that have changed. Respecting the denial of rehearing on banc, Judge R. Nelson, joined by Judges Bumatay and VanDyke, wrote that this case warrants comment even though it is not a proper vehicle for en banc review. The panel wrongly dismissed this appeal as moot because the capable of repetition, yet evading review, exception to mootness applies. Moreover, the district court’s injunction was issued in error under this circuit’s precedent and ignores the original meaning of the Due Process Clause of the Fourteenth Amendment.

ORDER

The panel unanimously voted to deny the petition for panel rehearing. Judge Christen voted to deny the petition for rehearing en banc, and Judges McKeown and Ezra so recommend. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for panel rehearing and rehearing en banc, Dkt. #61, is DENIED. 4 SACRAMENTO HOMELESS UNION V. CITY OF SACRAMENTO

McKEOWN and CHRISTEN, Circuit Judges, and EZRA,1 District Judge, respecting the denial of rehearing en banc:

In the normal course of events, a four-sentence, unpublished dispositive order dismissing an appeal as moot would not require further discussion following denial of a petition for rehearing en banc. Not surprisingly, as Judge Nelson acknowledges in his statement, “this case is not the proper vehicle to expend precious en banc resou