A Maricopa County judge just ruled that the city of Phoenix is maintaining an illegal “public nuisance” by encouraging a population of over 1,000 homeless people to reside in tents in a vast swath of downtown referred to as “The Zone,” Goldwater Institute Vice President and attorney Tim Sandefur explains. The city has effectively abdicated its responsibility to enforce the law.
The case was brought by business owners who have experienced exactly what California business owners have experienced: open air homeless camps erected on sidewalks in front of businesses, polluting the ground by homeless pooping and peeing, committing crimes against the businesses, and driving customers away.
The decision finds that the city has “intentionally stopped—or at least materially decreased—enforcement of criminal, health, and other quality of life statutes and ordinances in [T]he Zone,” effectively making it ”off-limits to [law] enforcement.”
Does this sound familiar?
This matters to California because, as with so many California city councils, “throughout the lawsuit, Phoenix officials have rationalized their refusal to enforce the law by claiming their hands are tied by the Ninth Circuit’s 2019 ruling in Martin v. City of Boise.“ The Globe has been critical many times over several years with Mayors for incorrectly reading and applying Martin v. City of Boise, hiding behind it so they could ignore the issue.
From the lawsuit: “The City erroneously applied the Martin case; interpreting its narrow holding as precluding the enforcement of public camping laws whenever the homeless population in Phoenix exceeded the number of available shelter beds. The City also stopped or greatly decreased enforcement of other health, quality of life, and even criminal laws and ordinances in the Zone.”
The judge identifies that “The City controls the rights of way in the Zone, including the streets, alleys, avenues, and sidewalks,” and even more important, “The City Stopped Enforcing Certain Laws in Phoenix’s ‘the Zone’.”
The court held in Martin v. City of Boise that it’s “cruel and unusual punishment” to arrest people for “involuntarily” sleeping on the streets. Since “human beings are biologically compelled to rest,” the Ninth Circuit declared, punishing people for “involuntarily sitting, lying, and sleeping in public” was cruel—like punishing them for “an illness or disease.”
In the case of Phoenix, Sandefur explains people have been allowed to live indefinitely on the streets—even when they refuse to accept room in a homeless shelter. In fact, today’s ruling rebuked Phoenix for its “glaring misinterpretation” of the Martin decision.
The “most glaring” example of that misreading, the court said, “is in the inference that anyone who has erected a tent or other structure in the public rights of way is intrinsically unable to otherwise obtain shelter.” Such a notion is nonsense: people can choose alternatives, and in fact virtually all of the people now residing in The Zone are not there because they are “biologically compelled” to be.
The judge addressed environmental issues: “Homeless individuals defecate and urinate in the open on the streets, sidewalks, lawns, and buildings. Property owners are forced to clean up the human waste each day.” And when this waste is washed into the storm drains, “that discharge ends up in the rivers, washes, and retention basins of the state.” Not only does it violate Arizona law to commit such pollution, but it’s expressly illegal for the city to allow it—yet the city has consistently refused to act.
Today’s ruling offers hope not just for the homeless themselves—who, after all, don’t deserve to be left in a ghettoized section of the city’s roads—but to the ignored small-business owners in the area, who are forced to try to earn a living in the midst of such chaos. Their tax dollars are supposed to pay the city for police services to protect their rights; instead, their rights have been disregarded by a city policy that allows homeless people—many of them mentally ill or addicted to drugs—to scare away their customers, assault their employees, and pollute their property. Today’s decision will not cure the problem overnight, but it is a welcome and long-overdue first step.
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