What’s Going on in Phoenix’s Homeless ‘Zone’ Lawsuits?

A trial judge in Phoenix issued a ruling Monday rejecting the city’s efforts to throw out a lawsuit challenging the legality of the city’s actions in maintaining “The Zone”—the homeless encampment in the city’s downtown that has become one of the largest concentrations of homeless people in the United States. That case, brought by a group of area property owners whose rights are being violated every day by The Zone’s inhabitants, contends that the city has effectively converted city streets into a massive homeless shelter by refusing to enforce anti-camping and anti-pollution laws—a position the Goldwater Institute supported with a friend of the court brief—and that this shelter is a “public nuisance” in violation of state law.

It’s hard to deny that: not only has crime spiked in the area, but nearby business owners have found their customers driven away, their employees harassed, and their buildings damaged by the pollution and crime that have become rampant in The Zone—all as a direct consequence of the city’s actions. Yet while the judge denied the city’s effort to have the case thrown out, he also postponed deciding whether to issue an injunction commanding the city to abate the nuisance. As a result, Phoenix’s taxpayers are forced to wait even longer for the city to comply with the law.

That wait is a bitter one, given that the case was fully briefed and argued at a day-long hearing in October, only to be postponed for months when the case was transferred to a new judge, and re-argued again in December. The Zone itself has already growing for months, and it’s only likely to get worse, given that the city has made clear its intention not to enforce the laws in the area. That’s not an exaggeration: the city’s lawyers have expressly declared that officials have made a “policy choice” to maintain The Zone by refusing to enforce the law there—and that if Phoenicians don’t like it, their only recourse is to vote the current city leadership out of office.

Phoenix officials could resolve the problem, of course, by creating a controlled, temporary camping area on vacant land that it owns, instead of city streets. The city has the money. But it refuses to do so, as the state judge explained in his order Monday, “because they would prefer to provide air conditioning and heat to homeless shelters, and they do not believe they can provide air conditioning and heat to the tents in a controlled camping space.” That, the judge observed, makes no sense: “the Court notes that the privately-owned tents that individuals have illegally constructed in The Zone also do not presently have air conditioning or heat and are largely in disrepair, providing little in the way of shelter to those residing in them. The individuals start bonfires to keep warm. Moreover, many of the individuals in The Zone have no tent or shelter whatsoever; they instead sleep right up against Plaintiffs’ buildings, on Plaintiffs’ patios, and on sidewalks or lawns.”

Nevertheless, the city’s choice is to do nothing—or perhaps worse than nothing, as today’s news brings word of the city’s plan to spend $200,000 to erect a single public toilet in the area, ostensibly to address the illegal and dangerous public defecation and urination problem in The Zone.

The city has offered another excuse for its inaction: it claims that a 2019 decision by the Ninth Circuit Court of Appeals forbids Phoenix from enforcing anti-camping laws. That case, called Martin v. City of Boise, held that it’s “cruel and unusual punishment” to arrest people for “involuntarily sitting, lying, and sleeping in public.” Since sleeping is a “biological” necessity, the judges said, it’s unfair to punish people for it. Yet the Martin decision went on to emphasize that it was not “suggest[ing] that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible.”

Ignoring that part of the Martin ruling, Phoenix politicians have taken to arguing that unless there are enough beds in the city’s homeless shelters to accommodate everyone in The Zone, its hands are tied, and that it must simply let people live on the streets for months, perhaps years—or even encourage them to do so—all while using drugs, urinating and defecating in public, trespassing on property, and destroying the livelihoods of Phoenix’s hardworking taxpayers.

After the October hearing in the state court, a second lawsuit was filed in the federal court by homeless advocates who have a different take on the issue. They agree with the property owners in the state lawsuit that the city is illegally maintaining The Zone, but they also argue that Phoenix police have sometimes wrongfully confiscated and even destroyed property belonging to The Zone’s inhabitants, and that this is unconstitutional. On December 16, the federal judge issued an order halting these confiscations, and also blocking the city from “enforcing the Camping and Sleeping Bans against individuals who practically cannot obtain shelter as long as there are more unsheltered individuals in Phoenix than there are shelter beds available.”

Naturally, the city has seized upon that language as yet another excuse for its refusal to enforce the law. But that excuse is a flimsy one. For one thing, there appear to be beds available—they’re just going unused, because shelters typically forbid people from doing drugs or drinking while on their property, and many Zone residents simply prefer to keep doing the latter. As we noted a few weeks ago, when the city recently offered space to a group of Zone inhabitants, many refused, preferring to stay in their tents. But if they can make that choice, then they are not “involuntarily” sleeping on the streets, and do not qualify as “individuals who practically cannot obtain shelter.”

What’s more, the Martin decision specifically applies to people who are incapable of avoiding homelessness—not to people who have chosen a lifestyle that includes living on the streets. Compare that to the plaintiffs in the federal lawsuit. According to the complaint in that case, the plaintiffs are able to obtain and maintain employment; they have credit cards, income from Social Security, and tents where they keep stores of food, water, clothing, and personal items—one plaintiff is a man who has lived on the streets for twenty-three years. That is not the “universal and unavoidable consequences of being human,” which is how the Martin case defined the word “involuntary.”

Nevertheless, the city welcomed the federal lawsuit as an opportunity to justify its inaction—as proven by the fact that, almost two months after that case was filed, the city has still not tried to dismiss that lawsuit. By contrast, it has tried to dismiss the state case, the one brought by hardworking, taxpaying residents who are fed up with the crime and pollution the city has tolerated, and even encouraged, in The Zone. Fortunately, the state court judge refused to indulge the city’s pretense. Unfortunately, however, it appears Phoenicians will have to keep waiting for an order protecting their rights.

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