What’s Happening in the Phoenix’s Homeless “Zone” Lawsuits?

The immense homeless encampment in downtown Phoenix, known as “The Zone,” is now the subject of two lawsuits—one in state court, and the other in federal court. The state lawsuit was brought by a group of property owners who have suffered violence, property destruction, pollution, and other injuries from the city’s actions in creating and maintaining The Zone. Those plaintiffs argue that by transporting people to The Zone and refusing to enforce the law in that area, the city is maintaining an illegal “public nuisance.” (The Goldwater Institute filed a brief in support of the property and business owners’ rights.) Last month, the judge in that case rejected the city’s effort to have the lawsuit thrown out, and ordered the city to take steps to abate the nuisance. He set a date for trial, and in the meantime issued an order commanding the city to take steps to eliminate the nuisance—giving officials until July 10 to show that they’re complying with the order.

The federal lawsuit, which was filed months after the state case, was brought by the ACLU, which argues that city officials are violating the Constitution by enforcing existing laws against camping on city streets. In other words, the ACLU claims that the city is doing too much to address the problems in The Zone.

More precisely, the ACLU says that the city has seized and destroyed some of the belongings of The Zone’s inhabitants without giving them an opportunity to reclaim their property, which violates the Constitution’s due process rules. But the ACLU also claims that the Ninth Circuit Court of Appeals’ 2019 ruling in Martin v. City of Boise forbids the city from enforcing laws against public camping unless the city is able to offer people places to sleep in homeless shelters. In December, the federal judge issued an order blocking the city from seizing property arbitrarily, but otherwise leaving the city free to clean up The Zone.

But Phoenix officials have sought ways to avoid their responsibilities to enforce the law in The Zone. They’ve pointed to the Martin decision as an excuse, arguing that it ties their hands—which is not true, as explained here—and have therefore more or less welcomed the ACLU’s lawsuit. That’s why Phoenix’s lawyers have tried to have the state case dismissed or stayed, but have still never moved to dismiss or stay the federal lawsuit. Only days after the state judge issued his order commanding the city to begin cleaning up the area, the city’s attorneys asked him to stay his own order—a motion the judge swiftly denied, in a one-page order pointing to the fact that the city has already spent years now refusing to enforce the laws in The Zone. The city then immediately asked the state’s court of appeals to pause the trial judge’s ruling and postpone the trial set for next month.

Meanwhile, the city began making some rudimentary cleanups in The Zone—only to be slapped a few weeks ago with a contempt motion by the ACLU. They claim (in the federal case) that the city has violated the federal court order by taking or destroying some people’s property during these recent cleanup efforts. The judge set a hearing on that motion for Tuesday—which was then moved to Friday, May 26, at 1:30 p.m.

Almost immediately after that, the state court of appeals rejected the city’s effort to postpone the state court case or to stay the state judge’s order. And shortly after that, the federal judge allowed the property owners who are the plaintiffs in the state case to intervene in the federal case as defendants. Intervention is a process that allows a person who wasn’t originally a party to a lawsuit to participate in the case because he or she has some legal right or interest at stake.

The bottom line is that the city is now legally required to begin cleaning up The Zone, thanks to the state court’s order—which the court of appeals has refused to stay—while at the same time it’s required to comply with the procedural protections set forth in the federal court order. These are not inconsistent, of course—the city can (and should) clean up The Zone while still giving its residents the due process protections they’re entitled to.

But there’s another legal issue on the horizon. Federal courts are typically not supposed to hear lawsuits if they’re already going on in state court. Under a doctrine called “abstention,” a federal judge will typically refuse to consider a case if the same or a highly similar case is already pending in state court, or if the state court is likely to resolve the legal and constitutional disputes that are raised by the federal case. The Zone lawsuits clearly implicate the “abstention” doctrine: the state lawsuit involves the same parties and many of the same legal issues—especially the question of whether the Martin case really does bar the city from cleaning up The Zone. That’s a textbook example of an “abstention” issue. For that reason, the next step should be for the federal court to dismiss the ACLU’s case, and allow the issue to be dealt with by state judges, who have the primary responsibility for the legal issues raised by the Zone lawsuits.

Update: After today’s hearing, the federal court issued an order denying the ACLU’s effort to have the city held in contempt. Read the order here.

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