Judge orders Phoenix to clean out ‘the Zone’ homeless site

Correction: Corrects the name of the organization in the 10th paragraph to say National Homelessness Law Center

A Maricopa County Superior Court judge ordered the City of Phoenix to clean out “the Zone” homeless encampment downtown.

The ruling mandates the area be free of tents, biohazardous materials and “individuals committing offenses against the public order,” by the time the case goes to trial in July.

Attorneys for the property owners who initially filed the suit heralded the victory, while advocates for unsheltered people fear further criminalization and constitutional right violations for the hundreds of people living in the few city blocks.

The next steps to clear out the camp remain unclear as the city is strung between this most recent ruling, and an earlier preliminary injunction in a federal case which affirmed the city cannot enforce camping or sleeping bans against people who do not have access to shelter and found they cannot seize property of unhoused people without providing proper notice.

Property owners and residents of the area sued the City of Phoenix last August, alleging officials created a public nuisance by failing to enforce criminal, health and quality of life statutes and ordinances in the area.

The city argued its ability to enforce those laws was severely limited under a U.S. Court of Appeals for the Ninth Circuit ruling.

Martin v. City of Boise held that cities cannot cite individuals for sleeping on public property when there are not enough shelter beds available to accommodate them.

But Judge Scott Blaney found the city erroneously applied Martin, maintaining the decision applies to those who are involuntarily homeless.

He wrote that some unknown portion of individuals in the Zone were “service resistant,” meaning they refuse services or shelter when offered, “because they have accumulated a large number of possessions on the street or because they are prohibited from taking contraband into the shelter, for example: drugs and weapons.”

Will Knight, Decriminalization Director for the National Homelessness Law Center, disagreed with Blaney’s reasoning and application of Martin, as well as his assessment of service resistance.

Knight said, “there is no such thing as service resistance,” as reflected in the academic and policy work by NHLC and similar organizations.

He said the reasons someone may refuse shelter often stem from a lack of safety and privacy within the shelters themselves.

And as far as Martin, he said the fact that the injunction also relying on Martin in a simultaneous federal case appeared nowhere in the ruling was alarming.

In December, the Martin precedent appeared in a simultaneous federal case filed by the American Civil Liberties Union against the city against “unconstitutional” sweeps within the Zone.

The plaintiffs in the suit, two unhoused individuals and the Fund for Empowerment, argued officers would clear out and sometimes dispose of tents and personal belongings. They filed ahead of a new “Enhanced Cleanup” initiative within “the Zone.”

Arizona District Court Judge Murray Snow issued a preliminary injunction ahead of the cleanup, holding the city could not cite individuals for camping or sleeping, or dispose of any property without prior notice and a 30-day holding period.

Knight fears the ruling and the injunction may come into conflict depending on how the city proceeds to relocate or rehouse people living in “the Zone.” His chief concern is the violation of constitutional rights as the city looks to move tents out of the area.

“That’s people’s homes. Their only homes. Their only protection, their only shelter at the moment,” Knight said. “Whether they’re struggling with addiction or not, whether they’re struggling with mental health or not, that’s the only thing that they have.”

But Ilan Wurman, attorney for the property owners around “the Zone,” said there is “absolutely no relationship between the two cases” as they understand the federal injunction to essentially be a “restatement” of the Martin decision.

“Nothing allows or compels the city to maintain a public nuisance,” Wurman said. “You can comply with the constitutional constraints, while also complying with public nuisance law.”

Blaney cited violent crime, public drug use, biohazardous conditions, property crimes, prostitution, public indecency and fire hazards prevalent in the block of the city, affirming the plaintiff’s claim that the area was a public nuisance.

And he 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.”

Stacey Champion, an advocate for unhoused people, said she empathizes with the residents and business owners affected, but she notes the sentiments and input from unhoused people completely evaded the case. And she said the rhetoric in the ruling came across as reductive and harmful.

“The us versus them rhetoric is just extremely unhealthy,” Champion said. “Painting anybody without a home with this big, criminal, crazy, or addicts brush is not productive and not accurate either.”

But Wurman contended the ruling was a win for both the plaintiffs and the unhoused population living in “the Zone.”

“We are not looking to overturn the 9th Circuit decision, we are not looking to send anybody to jail,” Wurman said. “We think that our solutions are better for the public population as well as unsheltered people.”

The solutions brought by Wurman and his clients are structured outdoor camping spaces, as well as further funding to temporary housing structures.

Blaney allowed the city discretion in complying with the order but strongly recommended the city build a structured outdoor public camping space.

He wrote outdoor camping areas would allow for hygiene measures, security and a workaround on the Ninth Circuit decision barring the enforcement of camping ordinances.

The city previously did not agree to go forward with outdoor camping spaces as it wanted to ensure the shelter provided to homeless individuals includes air conditioning and heating.

Blaney ordered by July 10, the first day of trial, “The City shall be prepared to demonstrate to the Court…the steps it has taken, and the material results it has achieved toward compliance with this Order.”

Kristin Couturier, spokesperson for the city, wrote in a statement that the city is continuing to review the details of the ruling.

She noted the ongoing efforts of the city to address homelessness.

Couturier said in 2022, the city added 592 new shelter beds, and 800 shelter and transitional beds will become available in 2023 and 2024, with 280 of those beds expected to open this summer.

“The City has and will continue to invest significant resources toward this urgent need for our most vulnerable residents,” Couturier said. “We are exploring options to accelerate current plans, working closely with State and local governments, nonprofit partners, the business community and residents as we work to solve the complex issues surrounding homelessness.”