An Arizona judge is urging the U.S. Supreme Court to take a hard look at two lower-court rulings that prohibited western cities from enforcing camping bans against some homeless people, arguing that they are based on “questionable legal analysis” and that the decisions paved the way for an explosion in homeless camps.
In a ruling over a massive downtown Phoenix homeless camp on Wednesday, Maricopa County Superior Court Judge Scott Blaney took aim at two recent Ninth Circuit Court of Appeals decisions — Martin v. City of Boise and Johnson v. City of Grants Pass — that he said have had a “profound impact” in western communities, evidenced by the “multitude of dangerous and dehumanizing homeless encampments and open-air drug markets in cities under the jurisdiction of the Ninth Circuit.”
The rulings, Blaney said, have “created an unworkable mandate based on questionable legal analysis,” and they “partially tie the hands of cities that seek in good faith to address the growing homeless encampment epidemic.”
And, as in Phoenix, the decisions “provide a convenient excuse for other city leaders that wish to do nothing while such encampments grow and fester,” he said.
“To the extent that a state trial court judge could have any influence on the United States Supreme Court’s decision to review a lower court ruling, this judge would respectfully urge the U.S. Supreme Court to review the Grants Pass ruling and, by extension, the Martin decision,” Blaney wrote in his 27-page ruling over a Phoenix homeless camp known as “the Zone.”
Last month, the city of Grants Pass, Oregon, petitioned the Supreme Court to review its case.
The Ninth Circuit previously ruled in the Grants Pass case that the city can’t enforce anti-camping ordinances “against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City to go.” That followed a 2018 ruling in the Martin case, in which the Ninth Circuit held that municipalities can’t impose criminal penalties against homeless people for sitting, sleeping, or lying on public property if they have no available shelter.
Timothy Sandefur, vice president of legal affairs for the conservative Goldwater Institute in Arizona, recently filed an amicus brief calling for the Supreme Court to overturn the Ninth Circuit’s Grants Pass ruling. “It has caused so much havoc, in the western states particularly,” he said. “I don’t know how the Supreme Court could possibly not take up this case.”
In his ruling on Wednesday, Blaney blasted the city of Phoenix, which he said “erroneously applied” Martin and relied on a “number of faulty assumptions” to allow the Zone to become a public nuisance. He ordered the city to finish clearing out and cleaning up the massive encampment by November 4, though he offered the city discretion in how it does that. The ruling followed a July trial. Blaney issued a preliminary injunction against the city in March, directing city leaders to begin clearing the Zone encampment.
Blaney’s ruling stems from a lawsuit filed last year by a group of downtown residents and business owners who were seeking to force the city to clear the encampment.
At its peak, hundreds, and sometimes more than 1,000 people were living in the camp, not far from the state Capitol and the Arizona Diamondback baseball stadium. People used hard drugs and engaged in prostitution openly, and organized crime and violence became common.
Blaney said the Zone became a biohazard, and law-abiding neighbors were regularly exposed to human excrement, used needles and contaminated drug paraphernalia, insect infestations, rotten food, and fentanyl and methamphetamine smoke.
Several burned bodies were discovered in the Zone, including the body of a newborn found dead in the street and the body of a man burned alive in a trash bin, court records say.
According to court documents, around 2018 and 2019 — on the heels of the Martin ruling — Phoenix city leaders changed their enforcement strategies in the area that became the Zone, limiting enforcement of criminal, health, and quality-of-life ordinances.
Rather than enforce the law, police officers started giving vagrants “courtesy rides” into the Zone, allegedly to get help at a Human Services Campus in the area. They often didn’t leave.
Officers told residents that “the Zone is off-limits to enforcement,” according to court records. During the July trial, city leaders testified that their strategy was to keep homeless people who commit crimes out of the criminal-justice system, because they “would prefer any human being not to become justice involved,” Blaney’s ruling said.
“The City’s refusal to meaningfully enforce statutes and ordinances in the Zone has created a classic siren song to certain individuals that are enticed at their peril by the Zone’s drugs, sex, and lack of societal rules,” Blaney wrote.
Blaney said the city misread the Martin case, interpreting its narrow holding to preclude the enforcement of any anti-camping laws whenever the city’s homeless population exceeded the number of available shelter beds. Neither the Martin nor Grants Pass case should have prevented the city from enforcing prohibitions on outdoor fires or stoves, arresting violent criminals, or enforcing laws against drug use and other nuisances, he said.
“But the most glaring misinterpretation of the Martin and Grants Pass opinions is the inference that anyone who has erected a tent or other structure in public rights of way is intrinsically unable to otherwise obtain shelter,” Blaney wrote.
Citing a study of Phoenix’s downtown homeless population published by the city in April of 2022, Blaney noted that only about 14 percent of the respondents said that a lack of shelter beds is the reason they are not sheltered. Others said they had too many belongings to take to a shelter, they didn’t want to give up a pet, they wanted to continue living with a partner, or they had addictions or a criminal history that kept them out. Some just “choose to live on the street without rules and restrictions,” the judge noted.
“Are you involuntarily homeless if you choose not to go into a shelter bed because you’d rather be with a pet or a partner or your property or using drugs?” said Ilan Wurman, an Arizona State University constitutional law professor and one of the lawyers for the plaintiffs. “These are not involuntarily homeless people. The city just assumes that anyone who is on the street in a tent is involuntarily homeless.”
City leaders had asked Blaney to give them until April to finish clearing the Zone. The Arizona Republic reported that it took the city four months just to clear half of the blocks in the Zone.
Kristin Couturier, the spokeswoman for Phoenix’s Office of Homeless Solutions, told the paper in an email that city leaders were “disappointed” with Blaney’s ruling, and were reviewing it and exploring their legal options.
“The City is addressing the area around the Human Services Campus strategically, one block at a time to ensure we can offer every individual we engage with shelter,” she said.
Wurman said the city could clear out the Zone in a matter of days if it quickly erected a regulated campground for people who are shelter resistant.
“It maybe won’t have all the porta potties ready, maybe won’t have all the showers that they want ready. That doesn’t matter for our purposes,” he said. “It doesn’t have to be Club Med for them to be forced into a regulated campground if they’re not willing to go to a shelter.”
Wurman said he believes the court order was necessary to force the city to act. “They made it very clear at trial that they didn’t want to force anybody anywhere,” he said.
The problem, according to Wurman, is that the city is trying to solve homelessness.
“We’re not asking you to solve homelessness. We’re not asking you to build 1,000 houses and then subsidize them,” he said. “We’re asking you to solve a particular problem, a public nuisance problem, a public encampment problem. You’re never going to solve homelessness.”
Wurman acknowledged that the city has made some progress in clearing some of the space in the Zone, though he said “it’s very slow going.” He questions how many people actually left.
“They may have cleared half the blocks, have they cleared out half the people? I’m dubious,” Wurman said.
In addition to the lawsuit targeting the Zone in Phoenix, Wurman just filed a lawsuit on behalf of three Tucson, Ariz. residents similarly arguing that homeless people have set up encampments in a park in their community — bringing trash, fires, odors, obstructions, and crime — and turning the park into a public nuisance.
Rather than being concentrated into one Zone-like encampment, the homeless camps in Tucson are more spread out. Wurman is hoping to force the city’s hand in his case, so other people can bring similar lawsuits in other parts of the city.
“Tucson is an even cleaner case,” Wurman said, “because they clearly have beds enough for everybody, but they’re just refusing to force anybody into them.”