Appeals Court Confirms Phoenix Officials Must Obey the Law in Homeless ‘Zone’

The Arizona Court of Appeals today agreed with a trial judge who last September ordered the city of Phoenix to clean up “The Zone”—the vast homeless encampment that the city effectively operated for well over a year on the streets of the city. With a population sometimes exceeding 1,000 people living in tents on sidewalks and in public parks, The Zone destroyed private businesses and ruined the livelihoods of innocent taxpayers—all because city officials refused to enforce their own already-existing laws.

Property owners, with help from the law firm Tully Bailey and the Goldwater Institute, filed a lawsuit and ultimately won when a trial court ordered the city to clean up The Zone and halt what the judge called the city’s “decision to forego enforcement of criminal, health, and other quality of life statutes.”

Although the city obeyed the court’s order to clean up The Zone, it was unrepentant about its refusal to obey the law, and chose to appeal the case, arguing that it had made a deliberate “policy” decision to operate The Zone. If voters didn’t like it, the city’s lawyers argued, then they should vote the city’s leadership out. But otherwise, property owners had to just accept the official refusal to enforce the law.

In today’s decision, the Court of Appeals unanimously rejected that argument. “For more than 85 years, Arizona’s courts have recognized the authority to hold municipalities responsible for public nuisances on land they own,” the judges declared. “The City has failed to show how obeying the law would pose ‘significant difficulties’ [or] … how requiring a municipality to abate a public nuisance on property it owns and controls and prohibiting a municipality from maintaining a public nuisance on that property impermissibly intrudes on that municipality’s autonomy.”

Today’s ruling is a welcome reminder that the government is not above the law—and, in fact, that it is required to enforce the laws evenhandedly, to protect the hardworking taxpayers whose rights are imperiled when city officials decide to simply ignore their law-enforcement responsibilities.

Unfortunately, the very fact that Phoenix leaders chose to appeal the trial court’s common-sense ruling shows that such officials cannot be depended upon to follow existing laws. And that shows the necessity for passing Proposition 312, the ballot initiative that will ensure that no future “Zones” occur on Arizona streets. That initiative provides that if cities refuse to enforce existing laws against public camping, defecating in the streets, and other nuisance activities, such that property owners have to pay for their own security—installing cameras, putting up bars on their windows, etc.—the property owners are entitled to a refund for that amount. What’s more, it takes that refund out of the money that the city would otherwise receive from the state. That’s as it should be: taxpayers pay for police protection, and if the city won’t give them that protection, they should at least get their money back.

You can learn more about the Zone case here, and more about Proposition 312 here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.