Last Thursday, lawyers for a group of Phoenix business owners argued their case against the city of Phoenix for maintaining one of the largest homeless encampments in the United States. “The Zone,” a huge area of downtown that is estimated to hold over 1,000 homeless people in tents on the streets and sidewalks, has become a center of crime and pollution, driving away customers and employees and making it impossible to do business in the neighborhood. That’s why the plaintiffs have sued Phoenix for maintaining a nuisance in the area, and it’s why the Goldwater Institute has filed a friend of the court brief in support of their lawsuit.
Perhaps the most remarkable incident to occur during Thursday’s hearing happened at the beginning, when city lawyers argued that the case should be thrown out based on the theory lawyers call “political question doctrine.” That’s a rule that says courts shouldn’t decide questions that are really only disputes over policy choices—instead, as Phoenix’s lawyers argued, people should have “recourse to the ballot box.”
In other words, the city’s lawyers were arguing that if you don’t like The Zone, you should vote out the Mayor and City Council.
To emphasize: the city did not argue at Thursday’s hearing that there’s nothing they can do about the homelessness problem in downtown Phoenix. Indeed, the city has received some $70 million in federal funds to address the crisis, and has so far chosen not to spend most of it. Indeed, Phoenix’s NBC affiliate reports that the city is still holding on to about 90 percent of money dedicated to this purpose. (One city official testifying at Thursday’s hearing told the judge that the city has established a task force of 10 people to address the situation, but…hasn’t even hired them all.) The city instead argued that The Zone is a policy decision on its part—that Phoenix officials are maintaining The Zone through an “exercise of their discretion,” and that if voters don’t approve, their remedy is to vote for someone else to run the city.
The testimony at Thursday’s hearing was at times shocking, as local business owners recounted their efforts to coexist with the massive homeless encampment the city has chosen to operate. One plaintiff, business owner Freddie Brown, described how he’d been forced to seal the windows of his building to keep out the urine, and how when it rains, the human feces in the surrounding soil create a nauseating stench. Violence and crime in the area has surged to such an extent that he is forced to call the police two or three times each day. But although officers will remove people who trespass on his land, they do not evict people from the public streets and sidewalks. Residents of tents set fires to keep warm in the evenings—dozens every night—and these sometimes catch tents, trees, or potentially buildings, on fire, too. It’s a situation that will only get worse as we head into winter.
That testimony supports the plaintiffs’ argument that the city is maintaining a nuisance in The Zone. In a 1985 case called Armory Park, the Arizona Supreme Court held unanimously that a Tucson-based charity that invited vagrants into a neighborhood to give them free meals was engaged in a nuisance because “transients frequently trespassed onto residents’ yards, sometimes urinating, defecating, drinking and littering on the residents’ property,” and committing crimes and vandalism in the area. In The Zone, the city itself has done far worse—and the burdens are being borne by innocent property owners in the neighborhood, who didn’t cause the homelessness problem and shouldn’t be deprived of their property as a consequence of what the city calls its “policy choices.”
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
