Court Orders Phoenix to Clean Up Homeless Encampments in “The Zone”
Maricopa County Superior Court Judge Scott Blaney issued a powerful ruling recently when he found that the City of Phoenix, Arizona, had created, or contributed to, deplorable health and public safety conditions in a section of downtown Phoenix that has come to be known as “The Zone,” a sprawling homeless encampment that has rapidly grown to more than 1,000 people living on the streets. The judge agreed with the plaintiffs, who live and work in the area, that the city is responsible for abating the public nuisances that have resulted from the encampments and ordered it to “maintain its public property in the Zone in a condition free of (a) tents and other makeshift structures in the public rights of way; (b) biohazardous materials including human feces and urine, drug paraphernalia, and other trash; and (c) individuals committing offenses against the public order.”
The Martin v. City of Boise Decision
It is instructive to note how quickly and severely conditions have deteriorated in The Zone. As the ruling notes, “Prior to 2018, there was some limited homelessness in the area but there were no tents or semi-permanent encampments. Residents generally considered the area safe despite the existence of the Human Resources Campus and its clients.” But then things took a dramatic turn for the worse following the Ninth Circuit Court of Appeals’ Martin v. City of Boise decision, which held that cities could not enforce anti-camping laws against people experiencing homelessness if they did not have access to adequate temporary shelter.
As the Phoenix ruling explained, “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 Martin case, and a follow-up case known as Johnson v. City of Grants Pass, asserted that someone deemed involuntarily homeless could not face criminal penalties for sitting, lying, or sleeping outside on public property if the city is unable to offer the individual shelter space. But, as Judge Blaney noted in the Phoenix case, citing Grants Pass,
. . . neither case precludes municipalities from enforcing prohibitions against fires, stoves, or structures that do not provide ‘the most rudimentary precautions against the elements.’ Nor do the cases preclude municipalities from abating a nuisance, arresting violent offenders, enforcing laws against drugs and violence, or enforcing laws against biohazards and pollution of public waters, etc.
“But the most glaring misinterpretation of the Martin and Grants Pass opinions,” Judge Blaney continued, “is the inference that anyone who has erected a tent or other structure in the public rights of way is intrinsically unable to obtain shelter. The Court rejects such a broad, unsupported inference. The cases also do not support the inference that anyone in the Zone that is using illegal drugs, is publicly intoxicated and/or passed out, is committing criminal acts, and/or is engaging in some type of public indecency, is involuntarily engaging in the offending conduct as an unavoidable consequence of his or her status.”
For example, “a service resistant individual could not be said to lack access to adequate temporary shelter if he or she is refusing the service.” In other cases, some portion of people experiencing homelessness (though likely a small percentage) may have savings or receive government benefits, pensions, disability payments, or other income that could be used for housing. The judge’s point was that a city does not necessarily have to have a shelter bed for every single unsheltered person experiencing homelessness to satisfy the Martin and Grants Pass decisions, as some cities, including Phoenix, have interpreted them. More importantly, the lack of a bed for each unsheltered person experiencing homelessness cannot be used by local governments as an excuse to refuse to enforce a wide variety of laws or prevent the kinds of nuisances that have arisen in The Zone. This is just what happened in Phoenix.
The decision further found that the lack of law enforcement in The Zone was a conscious decision and policy of the city: “The City limits the discretion of police officers working in the Zone to enforce applicable laws and ordinances. Police officers working in the Zone have informed Plaintiffs that ‘the Zone is off-limits to enforcement.’ Police officers have specifically advised Plaintiffs that if they want the police to enforce the laws, they need to go to their policymakers and tell them to let the police enforce laws in the Zone.”
Conditions in The Zone
The decision also illustrated how horrible the conditions in The Zone are, not only for those experiencing homelessness but also for the residents, workers, and small business owners in the area. Below are some of the court’s findings. While even these excerpts are lengthy and sometimes graphic, they are important to paint an accurate picture of what those in The Zone must endure on a daily basis.
There has been a dramatic increase in violent crime in the Zone since 2018, including assault and homicide. Police officers have responded on multiple occasions to situations involving burned or burning human bodies in the Zone, including that of a burned, deceased newborn baby found lying in the street. Business owners and employees no longer feel safe and must travel in groups. There is a constant risk of violent crime to property owners, their family members, business owners, and their employees while on their property or in their businesses. Employees of businesses in the Zone have been violently attacked and they face verbal confrontations with homeless individuals almost daily. There are also frequent fights involving anywhere from two to six homeless individuals.
[. . .]
There has been a proliferation in public drug use in the Zone since 2018. This includes use of needles and the smoking of dangerous substances, such as fentanyl and methamphetamine. Individuals in the Zone often smoke these dangerous substances by the doors and windows of Plaintiffs’ businesses and homes, resulting in the toxic smoke coming into the residence or business and forcing Plaintiffs and their employees to risk breathing it in. There are frequent overdose cases on the property of area businesses and driveways. Plaintiffs routinely find used needles on their properties, in addition to pieces of tin foil with burned residue of fentanyl pills all over the sidewalks. Business owners and property owners often find intoxicated, unconscious individuals sleeping right up against and/or on the patios of their properties and businesses.
Since 2018, the Zone has evolved into a serious environmental nuisance—a biohazard—that empties into the state’s waterways. The City does not dispute this fact. There is a considerable amount of human waste, food waste, and trash dumped on the streets or around the streets. Homeless individuals defecate and urinate in the open on the streets, sidewalks, lawns, and buildings. Property and business owners are forced to clean up the human waste each day. When it rains, the soil in and around the area is so soaked with urine and human feces that the rain intensifies the smell. Business and property owners do not go outside when it rains because of the puddles full of human urine and feces. The proliferation of human excrement and half-eaten food causes an infestation of flies and other insects in the Zone.
[T]here are used needles lying everywhere in the Zone. And users leave pieces of tin foil with burned residue of fentanyl pills in them on the lawns, in the street, and on the sidewalks. The fentanyl-tainted pieces of tin foil blow around in the wind and come into contact with residents, business owners, their employees, and even their children.
There is a dramatic increase in trash since 2018. The City has provided some dumpsters in the Zone but they are constantly overflowing. The issue is often exacerbated when the homeless climb into the dumpsters and throw the trash onto the street. Individuals living on the street dump their trash into the sidewalks and curbs and when the wind blows, the trash is carried all over the businesses, sidewalks, and properties.
[. . .]
The storm drains in the Zone are clogged with human excrement, rotting food, and trash. The homeless dump buckets of human waste into the storm drains. This toxic material ends up in the Rio Salado River Parkway.
[. . .]
Residents and business owners in the Zone have seen a dramatic increase in property crimes with the influx of homeless individuals since 2018. Plaintiffs experience break-ins of their properties during and after business hours, even when the buildings are occupied. Business owners have had to install multiple locks over and over again just to offer some sort of temporary security but the homeless continue breaking in to steal anything of value. Plaintiffs also experience frequent break-ins of their vehicles, with one Plaintiff having found a cinderblock thrown through the window of his truck so that the thief could look for anything of value inside.
The increase in homeless individuals and drugs, coupled with the City’s decrease in enforcement, has resulted in illegal prostitution, frequent public nudity, and lude [sic] acts in plain view directly adjacent to Plaintiffs’ businesses and properties. At least several times each month, business owners and/or their employees witness sex acts right out in the open or in tents with open tent flaps and open windows. . . . There is also frequent public masturbation in plain view of business owners, their employees, and family members.
The individuals that reside on the streets of the Zone light fires for cooking and for heat, in the open, often with nobody tending to the bonfires because the individual has passed out or walked away. . . . Structure fires are not uncommon in the Zone.
Rights of way in the Zone are blocked. Wall-to-wall tents and encampments line the sides of the streets. The tents and makeshift structures block the entire sidewalk and portions of the street with buckets of human excrement spilling over into the streets. In most areas the tents extend five to eight feet into the street, blocking traffic, including emergency vehicles. Property and business owners find it impossible to park.
[. . .]
The City refuses to remove the tents and the other obstructions, despite the hazards they present.
[. . .]
Plaintiffs have experienced a dramatic decrease in customers and foot traffic to their businesses and a decrease in the value of their properties that corresponds to the increase in homeless encampments in the Zone.
Addressing the Problems (or Not)
The court raised the prospect of mitigating the horrific circumstances in the Zone with safe-camping sites and noted that cities such as Denver; Los Angeles; and Santa Rosa, California, had successfully done so without creating public nuisances. The City of Phoenix has scoffed at this approach, however.
The City admits that it is possible to get all the unsheltered people in the Zone into a structured campground if the City made the structured campground its priority. The City further admits that temporary, cheaper, emergency shelters would solve the issue of homelessness for some people, even if it does not solve the issue for everybody. . . . City leaders are not considering the creation of controlled, outdoor camping spaces on vacant City property 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 (emphasis in original).
The court responded by dryly noting that the people currently living in tents on the streets do not have air conditioning or heat now, and some of them do not have any tents or shelter at all.
So what is the City of Phoenix doing about the problem? As the court explains:
With few exceptions, the action items about which City representatives testified centered around the creation of more bureaucracy, additional staff positions, and obtaining additional funding for programs to vaguely address homelessness in general. The Court received very little evidence—if any—that the City intends to take immediate, meaningful action to protect its constituent business owners, their employees, and residents from the lawlessness and chaos in the Zone. . . . Conditions have continued to worsen in the Zone, even after the creation of the Office of Homeless Solutions.
In other words, the city government has effectively thrown up its hands; largely ignored the plight of those experiencing homelessness, residents, workers, and business owners in The Zone; and focused instead on growing the bureaucracy, feeding the homeless-industrial complex, and eschewing short-term action for expensive, ineffective, long-term approaches such as the permanent supportive housing of “Housing First” (which often ends up not being permanent or supportive, and many of these housing units never come to fruition in the first place due to their high costs).
The City of Pheonix’s Defense
In response to these damning criticisms and the disastrous state of affairs in The Zone, the city argued that this was all effectively moot because the government has discretion over which policies it adopts and how it enforces them, so private citizens cannot tell the government how to do its job.
However, as the court asserted after detailing how conditions in The Zone clearly meet the definitions of nuisances in a number of Arizona statutes, “while the City may exercise discretion in how it complies with some of the statutes, the City does not have discretion regarding whether it complies with those statutes” (emphasis in original). The court additionally found that “the City has abused its discretion through the arbitrary application of the law and provision of taxpayer funded security in the Zone.”
The city must devise a plan to abate the nuisances in The Zones and show progress toward attaining this goal by the next scheduled court date in July.
Implications of the Ruling
Addressing the deplorable conditions created or exacerbated by homelessness through nuisance law is rather novel, but the arguments are sound. Cities that, like Phoenix, have created or substantially contributed to conditions like those in the Zone through policy choices or arbitrary enforcement (or the lack of enforcement) of their own laws bear responsibility for the increased murders, assaults, robberies, and health and environmental hazards that have resulted. Business owners have had their livelihoods and nest eggs destroyed. In many cases, they cannot escape from such a dangerous madhouse area because their properties, which might be worth $1 million or more without the current conditions in The Zone, have become essentially worthless and unmarketable (see here and here). The very least cities can do is eradicate the nuisances they have caused.
While the Maricopa County Superior Court’s jurisdiction is limited to the local area, it remains to be seen whether similar rulings will be made in other cities afflicted by such conditions (i.e., Los Angeles, San Francisco, Oakland, Seattle, Portland).
As for the law enforcement implications of the decision, while locking more people up for low-level offenses may not be an effective solution to homelessness, the use of pretrial diversion programs such as the one successfully employed in Yavapai County, Arizona (located just north of Maricopa County), can provide the added incentive many people need to connect them with help and services to get—and keep—them off the streets and out of the criminal justice system. Sometimes it takes the prospect of facing severe consequences for their illegal actions to get people to accept the help they need.
The housing component of the problem requires a more detailed analysis, which you can find in the Independent Institute’s research and policy recommendations on homelessness, including the report Beyond Homeless: Good Intentions, Bad Outcomes, Transformative Solutions and the award-winning documentary “Beyond Homeless: Finding Hope.”
